THE INTERNATIONAL CRIMINAL COURT:

HISTORY AND ROLE

Publication No. 2002-11-E

1 December 2022

Revised by Scott McTaggart

Parliamentary Information, Education and Research Services

AUTHORSHIP
Date Author Division

1 December 2022 Scott McTaggart Economics, Resources

and International Affairs Division

28 June 2013 Laura Barnett Legal and Social Affairs Division

4 November 2008 Laura Barnett Legal and Social Affairs Division

14 May 2002 Benjamin Dolin Law and Government Division

ABOUT THIS PUBLICATION

Library of Parliament HillStudies provide in-depth studies of policy issues. They feature historical
background, current information and references, and often anticipate the emergence of the issues
they examine. They are prepared by Parliamentary Information, Education and Research Services,
which carries out research for and provides information and analysis to parliamentarians and
Senate and House of Commons committees and parliamentary associations in an objective,
impartial manner.

© Library of Parliament, Ottawa, Canada, 2023

The International Criminal Court: History and Role

(HillStudies)

Publication No. 2002-11-E

Ce document est également publié en français.

 CONTENTS

EXECUTIVE SUMMARY

1 INTRODUCTION.....................................................................................................................1

2 THE ROAD TO ROME ............................................................................................................1

2.1 Post-war Advances in International Criminal Law ...................................................................2

2.2 International Criminal Tribunals

for the Former Yugoslavia and Rwanda ..................................................................................3

2.3 Rome Conference ...................................................................................................................3

3 THE ROME STATUTE AND THE INTERNATIONAL CRIMINAL COURT ..............................4

3.1 Jurisdiction of the International Criminal Court ........................................................................4

3.2 Crimes Under the International Criminal Court’s Jurisdiction ..................................................5

3.2.1 Genocide .................................................................................................................................6
3.2.2 Crimes Against Humanity ........................................................................................................6
3.2.3 War Crimes .............................................................................................................................7
3.2.4 Crime of Aggression................................................................................................................8

3.3 International Criminal Court Judges

and Court Administration .........................................................................................................8

3.4 Office of the Prosecutor ..........................................................................................................8

3.5 Chambers .............................................................................................................................10

3.5.1 Pre-Trial Chamber.................................................................................................................10
3.5.2 Trial and Appeals Chambers .................................................................................................10

3.6 Victim Assistance and Participation ......................................................................................11

4 INTERNATIONAL CRIMINAL COURT AT WORK ................................................................11

4.1 States Parties to the Rome Statute .......................................................................................12

4.2 International Criminal Court Investigations

and Preliminary Examinations ...............................................................................................12

4.3 International Criminal Court Cases and Trials .......................................................................14

4.4 Selected Recent Cases .........................................................................................................14

4.4.1 Bemba, Bemba et al..............................................................................................................14
4.4.2 Gbagbo and Blé Goudé ........................................................................................................15
4.4.3 Ntaganda ..............................................................................................................................16

5 CRITICISMS OF THE INTERNATIONAL CRIMINAL COURT ..............................................16

i
5.1 Chambers .............................................................................................................................17

5.2 Office of the Prosecutor ........................................................................................................18

5.3 States Parties ........................................................................................................................19

5.4 Focus on Africa .....................................................................................................................19

5.5 International Criminal Court and the United States ...............................................................20

6 CONCLUSION ......................................................................................................................21

APPENDIX – OVERVIEW OF ALL INTERNATIONAL CRIMINAL COURT CASES

ii
 EXECUTIVE SUMMARY

On 1 July 2002, a group of countries around the world established the International
Criminal Court (ICC or the Court) as a forum to investigate and prosecute those
responsible for the world’s most serious crimes. The Rome Statute of the
International Criminal Court (Rome Statute), which governs the ICC and today has
123 states parties, builds on the legacy of the ad hoc international tribunals that
preceded it, marking a milestone in the advancement of international criminal law.

With jurisdiction over the crimes of genocide, crimes against humanity, war crimes
and the crime of aggression, the ICC is a court of last resort for serious offences that
national governments are unable or unwilling to investigate and prosecute. The ICC’s
Office of the Prosecutor (OTP) is an independent organ of the Court with the power
to initiate investigations, subject to certain limitations. ICC investigations may also
be initiated at the request of ICC states parties or the United Nations Security Council.
The ICC’s 18 judges are elected by states parties to the Rome Statute, and the Court
is divided into pre-trial, trial and appeals chambers. The ICC also recognizes the right
of victims to participate in proceedings and provides support to assist them.

As of November 2022, the OTP had opened 17 investigations regarding situations in

16 countries. These investigations led to charges in 33 cases involving 49 defendants.
Many of these cases are either ongoing – in a number of instances, because the accused
are not in custody – or have ended prior to a verdict being reached. In total, the ICC
has convicted five individuals for crimes under its jurisdiction and five others for
crimes related to ICC proceedings, such as witness tampering.

Now more than 20 years old, the ICC has become an established, if controversial,
part of the international landscape. The Court has demonstrated the viability of
a permanent institution that can successfully investigate and prosecute international
crimes, but its record of securing convictions has proven underwhelming.
Recognizing the need for reform, the ICC states parties commissioned an independent
review of the Rome Statute system in December 2019. In their final report, the
experts made hundreds of recommendations for improvement, targeting all branches
of the institution and the ICC states parties themselves.

The ICC faces challenges from other corners as well. Criticism of the ICC’s record
from Africa has been particularly pointed; it includes accusations of racism and calls
for the mass withdrawal of African countries from the ICC. The United States, among
other powerful nations, continues to operate outside the Rome Statute system and is
at times hostile to its operations.

iii
Despite these challenges, the ICC’s mandate to end impunity for atrocities committed
around the world remains as relevant today as it was the day the institution was founded,
and the Court continues to move international criminal law forward to that end.

iv
 THE INTERNATIONAL CRIMINAL COURT:
HISTORY AND ROLE

1 INTRODUCTION

In 1998, a group of countries signed a treaty with the goal of ending impunity for
the world’s most serious crimes by establishing a permanent international criminal
tribunal, the International Criminal Court (ICC or the Court). The Rome Statute of
the International Criminal Court 1 (Rome Statute) marked a milestone in
the development of international criminal law as states recognized the need to reach
beyond the ad hoc solutions that preceded the ICC and build a court with broad
jurisdiction to investigate, try and punish perpetrators of atrocities around the world.
Officially created in 2002, the ICC has now become an established, if controversial,
feature of the international landscape.

After two decades, the ICC has seemingly proven both its harshest critics and its most
enthusiastic supporters wrong. The Court’s record demonstrates that prosecuting people
responsible for international crimes is possible, but it is a complex, time-consuming
endeavour. Although its successful conviction of even a small number of perpetrators
may assuage doubts about the ICC’s viability, its lofty goals of ending impunity
and deterring atrocities remain unattained.

This paper provides an overview of the historical development of international

criminal law and a summary of the Rome Statute. It discusses the role and functioning
of the ICC before proceeding to a review of the Court’s record to date and a discussion
of the criticisms the ICC faces today.

2 THE ROAD TO ROME

Having transitioned from a system of impunity to one of justice administered by

victors over the vanquished, the international community is now witnessing
the development of what many suggest is an impartial system of international
criminal justice. Building on the legacy of the post–World War II period, the ad hoc
tribunals established in the early 1990s catalyzed a push for a permanent international
court and for the negotiation of the Rome Statute later in the same decade.

i
 THE INTERNATIONAL CRIMINAL COURT: HISTORY AND ROLE

2.1 POST-WAR ADVANCES IN INTERNATIONAL CRIMINAL LAW

The concept of an international criminal court was identified as early as the

15th century, and by the late 19th century, international criminal law began to emerge
in the form of violations of rules governing military conflict. 2 However, it was not
until the end of World War II that the modern concept of international criminal law
began to take shape. Nazi Germany launching an offensive military campaign
and committing startling atrocities prompted the Allied powers to place “among their
principal war aims the punishment, through the channel of organized justice, of those
guilty of or responsible for these crimes, regardless of whether they have ordered
them, perpetrated them or participated in them.” 3

In pursuit of that goal following the war, the International Military Tribunal, sitting at
Nuremberg, and the International Military Tribunal for the Far East, sitting at Tokyo,
were established.

At Nuremberg, prosecutors from the major allied powers were responsible for
investigating and prosecuting major war criminals responsible for the commission
of “crimes against peace,” “war crimes” and “crimes against humanity.” 4 After
a ten-month trial, the Tribunal issued its final judgment in 1946, acquitting
three defendants and sentencing 19 others to imprisonment or death.
Three organizations were also acquitted, while another three were found to be
criminal organizations. 5

In Tokyo, a tribunal of a similarly international character and almost identical charter

was established. The Tokyo Tribunal trials lasted more than two years and all of
the accused were found guilty and sentenced to imprisonment or death.

The tribunals were part of a larger post-war initiative to advance international

criminal law. In 1948, the Convention on the Prevention and Punishment of
the Crime of Genocide 6 (Genocide Convention) was adopted, marking
the first international recognition that “genocide, whether committed in time of peace
or in time of war, is a crime under international law.” 7 The following year,
the Geneva Conventions of 1949, comprising four treaties, were adopted. 8 These
four treaties called on the states to criminalize grave breaches of international
humanitarian law. When the United Nations (UN) General Assembly adopted
the Genocide Convention, it also invited the International Law Commission (ILC) –
a committee of legal experts working to develop and codify international law –
to examine the possibility of establishing a permanent international criminal court. 9

2
 THE INTERNATIONAL CRIMINAL COURT: HISTORY AND ROLE

With the onset of the Cold War, post-war cooperation to advance international
criminal law slowed dramatically. However, in 1990, the ILC’s post-Nuremberg
project was revived following a special session of the UN General Assembly focused
on international drug trafficking prosecutions and a well-received ILC report that
went beyond this limited issue. Building on this success, the ILC resumed the task of
preparing a draft statute for a comprehensive international criminal court. 10 The move
proved timely as it coincided with the return of international criminal justice to
the agenda of the international community in response to atrocities in Yugoslavia
and Rwanda.

2.2 INTERNATIONAL CRIMINAL TRIBUNALS

FOR THE FORMER YUGOSLAVIA AND RWANDA

In the early 1990s, two ad hoc tribunals were created as subsidiary organs of the
UN Security Council: the International Criminal Tribunal for the former Yugoslavia
(ICTY), 11 formed in 1993, and the International Criminal Tribunal for Rwanda
(ICTR), 12 founded in 1994. The ICTY and ICTR both operated for more than
20 years, and more than 150 individuals were convicted for international crimes
committed in the two countries. 13

Despite some significant cynicism about the time and money spent, the ability of
these tribunals to achieve true peace and reconciliation, and difficulties arresting
those indicted by the ICTY, 14 both tribunals have contributed to historic progress
in international criminal law. Louise Arbour, a former justice of the Supreme Court
of Canada and a chief prosecutor of the tribunals, described the tribunals as
“a procedural and a practical laboratory for the enforcement of the laws of war.” 15
Later commentators credited the tribunals’ jurisprudence as “fundamental in shaping
the statutes and jurisprudence” 16 of the ICC and enhancing “the quality of its
reasoning and the legitimacy of its judgments” in the early years of its existence. 17

Despite these achievements, it took two years of negotiations and preparation

to establish the ICTY and ICTR, leading many observers to point to the necessity
of a permanent court that would avoid the time-consuming establishment process
and that could also address smaller-scale incidents that might not garner the political
will to establish another ad hoc tribunal. 18

2.3 ROME CONFERENCE

In 1994, the ILC submitted a draft statute for an international criminal court to
the UN General Assembly, 19 and the Preparatory Commission for the Establishment
of an International Criminal Court was founded in 1996. An amended draft statute
was submitted in April 1998, setting the stage for the five-week conference held in
Rome starting in June of that year.

3
 THE INTERNATIONAL CRIMINAL COURT: HISTORY AND ROLE

Although jurisdictional issues were the most complex and most sensitive,
the proprio motu prosecutor model (a prosecutor who has the power to initiate
proceedings) did receive “considerable, but not general, support.” 20 As the conference
was nearing its conclusion and no agreement was evident, the Bureau of the Committee
of the Whole 21 decided to prepare a final package for possible adoption, as many feared
that a second conference stood no better chance of success. The Bureau’s package
was adopted in a final vote of 120 in favour, 21 abstaining and seven against.

The United States (U.S.) voted against the Rome Statute – along with China, Iraq,
Israel, Libya, Qatar and Yemen – then signed it on 31 December 2000, the last day
the treaty was open for signature. In a blow to the nascent court, the U.S. then
retracted its signature in May 2002, when John Bolton, then Under Secretary of State
for Arms Control and International Security, sent a letter to the UN stating that
the U.S. did not intend to become a party to the Rome Statute and formally
renouncing any obligations under the treaty. 22

Canada ratified the Rome Statute in July 2000, after enacting the Crimes Against
Humanity and War Crimes Act 23 to carry out its obligations under the Rome Statute
and to enhance its ability to prosecute war crimes and crimes against humanity.

3 THE ROME STATUTE AND THE INTERNATIONAL CRIMINAL COURT

The ICC came into being on 1 July 2002 with the entry into force of the Rome Statute.
The Rome Statute is accompanied by the primary legal texts of the ICC –
the Regulations of the Court, the Rules of Procedure and Evidence, and the Elements
of Crimes – which explain the structure, functions and jurisdiction of the Court. 24

3.1 JURISDICTION OF THE INTERNATIONAL CRIMINAL COURT

Broadly speaking, the Court has jurisdiction over those individuals directly
responsible for committing crimes listed in the Rome Statute, as well as others who
may be indirectly responsible, such as military commanders, political leaders or other
superiors. 25 The Court’s jurisdiction is limited to offences committed after the entry
into force of the Rome Statute. 26

An ICC investigation may be initiated based on a referral from either the

UN Security Council pursuant to Chapter VII of the UN Charter 27 or a state party
to the Rome Statute. The Office of the Prosecutor (OTP) may also initiate
investigations independently, or proprio motu, subject to court authorization. 28 For
state- or prosecutor-initiated investigations, article 12 restricts the ICC’s jurisdiction
to crimes committed on the territory of a state party or those committed by a national
of a state party, except where the relevant non-state party accepts the jurisdiction of
the Court.

4
 THE INTERNATIONAL CRIMINAL COURT: HISTORY AND ROLE

The ICC is a court of last resort, and based on the principle of complementarity,
it may not pursue cases which are or were the subjects of credible investigations
or prosecutions by a state with jurisdiction over the offences. Under article 17 of
the Rome Statute, cases that are or have been the subject of a national investigation
and/or prosecution are inadmissible in the ICC, unless the state in question is
“unwilling or unable genuinely to carry out the investigation or prosecution.” 29
This deference to national courts extends to cases where states exercise
extraterritorial jurisdiction over crimes within the ICC’s jurisdiction, for example,
as allowed for in Canada’s Crimes Against Humanity and War Crimes Act. 30

3.2 CRIMES UNDER THE INTERNATIONAL CRIMINAL COURT’S JURISDICTION

The ICC has jurisdiction over the “most serious crimes of concern to the international
community,” namely four core crimes: the crime of genocide, crimes against
humanity, war crimes and the crime of aggression. 31 As a last-minute compromise
during the Rome conference, the crime of aggression was listed as a crime under the
Court’s jurisdiction, but exercise of the jurisdiction was deferred until amendments to
the Rome Statute were made to define the crime and set conditions on the Court’s
jurisdiction. In June 2010, the ICC’s Assembly of States Parties (ASP) adopted these
amendments. 32 The amendments came into force on 17 July 2018 following their
ratification by more than 30 states parties to the Rome Statute. 33 Canada has not
ratified the amendments, limiting the ICC’s jurisdiction over crimes of aggression
committed on Canadian territory or by Canadian nationals. 34

The Rome Statute sets out each crime under its jurisdiction and establishes
the conditions for individual criminal responsibility of accused persons. Article 9 of
the Rome Statute authorizes the ASP to adopt and subsequently amend the ICC’s
Elements of Crimes 35 (EOC) to assist in the interpretation and application of
the statute. Under article 21, EOC has equal status to the Rome Statute as a primary
legal source for the Court. 36 EOC elaborates on the provisions of the Rome Statute
and establishes the specific elements required for each specific type of crime, for
example genocide by killing members of a group under article 6(a), or the crime
against humanity of torture under article 7(1)(f).

5
 THE INTERNATIONAL CRIMINAL COURT: HISTORY AND ROLE

3.2.1 Genocide

Often referred to as the “crime of crimes” after the Nuremburg Trials, 37 genocide was
first defined in international law in the 1948 Genocide Convention. Article 6 of
the Rome Statute adopts the definition of genocide as originally set out in article 2
of the Genocide Convention:

In the present Convention, genocide means any of the following acts

committed with intent to destroy, in whole or in part, a national,
ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of

the group;

(c) Deliberately inflicting on the group conditions of life

calculated to bring about its physical destruction in whole or
in part;

(d) Imposing measures intended to prevent births within

the group;

(e) Forcibly transferring children of the group to another group.38

The definition of genocide creates a dual intent requirement: the general criminal
intent to commit the act in question (e.g., killing, serious bodily harm) and a
specific intent of committing the act in pursuit of the goal of destroying a defined
group, in whole or in part. 39 EOC adds a contextual element to the definition,
requiring that the act take place within “a manifest pattern of similar conduct directed
against that group or was conduct that could itself effect such destruction.” 40
The ICC Pre-Trial Chamber has interpreted this contextual requirement as meaning
the threat to the group in question must be “concrete and real.” 41

3.2.2 Crimes Against Humanity

The concept of crimes against humanity has existed in international law for at least
a century, and its articulation in article 7 of the Rome Statute has been described
as both a codification and advancement of the concept under customary international
law. 42 Article 7(1) enumerates 11 underlying crimes, including murder, enslavement,
and torture, which may constitute crimes against humanity. Under this article, like
genocide, crimes against humanity require that the crimes be committed within
a specific context, namely, “as part of a widespread or systematic attack directed
against any civilian population, with knowledge of the attack.”

6
 THE INTERNATIONAL CRIMINAL COURT: HISTORY AND ROLE

Article 7(2) defines such an attack as “a course of conduct involving the multiple
commission” of the underlying crimes listed in article 7(1), committed “pursuant
to or in furtherance of a State or organizational policy.” The EOC further stipulates
that the attack need not be a military attack and that under exceptional circumstances,
the policy requirement may be fulfilled by a “deliberate failure to take action,”
rather than actively encouraging or promoting the attack. 43

Unlike genocide, there is no discrimination requirement, meaning the targeted

population need not be members of a defined group. Also, in contrast to war crimes,
there is no requirement that the crime take place in the context of an armed conflict.

3.2.3 War Crimes

War crimes under article 8 of the Rome Statute incorporate international crimes
found in other international instruments, most notably the Geneva Conventions,
as well as crimes which had not been previously codified in international law. 44
Article 8(2)(a) of the Rome Statute criminalizes acts committed against persons
and property protected by the Geneva Conventions – including the sick and wounded,
prisoners of war and civilians – while article 8(2)(b) criminalizes “[o]ther serious
violations of the laws and customs applicable in international armed conflict.” 45

Similarly, for conflicts not of an international character, article 8(2)(c) criminalizes

serious violations of article 3 common to all four of the Geneva Conventions, while
article 8(2)(e) criminalizes other serious violations of laws and customs applicable
in that context. 46 Crimes relating to non-international conflicts are subject to
an intensity threshold 47 under articles 8(2)(d) and 8(2)(f), which excludes situations
of “internal disturbances and tensions” from the Court’s jurisdiction.

Through articles 8(2)(b)(xxii) and 8(2)(e)(vi), the Rome Statute became

the first instrument to list forms of sexual violence, such as rape, sexual slavery,
enforced prostitution, forced pregnancy and enforced sterilization, as distinct types of
war crimes. 48 The Rome Statute was also the first to establish an ecological war
crime under article 8(2)(b)(iv) for attacks that result in “long-term and severe damage
to the natural environment.”

As part of a nexus requirement for war crimes, the crimes must be committed
“in the context of” and be “associated with an armed conflict.” 49 Additional knowledge
requirements apply to some war crimes, such as being aware of the circumstances
that would lead to a person being considered a protected person under
the Geneva Conventions.

7
 THE INTERNATIONAL CRIMINAL COURT: HISTORY AND ROLE

The ASP passed amendments to article 8 in 2010, 2017 and 2019, adding crimes
for non-international conflicts that already existed for international conflicts
and establishing new crimes for the use of certain types of weapons. Like the crime
of aggression, discussed below, these amendments are in force for parties that have
ratified them, 50 currently a minority of the states parties. Canada has not ratified any
of the amendments to article 8.

3.2.4 Crime of Aggression

In 2018, the ICC became the first international tribunal since the Nuremburg Tribunal –
where the lead charge was crimes against peace – to have jurisdiction over the crime
of aggression. 51 Article 8bis(1) of the Rome Statute limits the application of the crime
of aggression to persons “in a position effectively to exercise control over” a state or
to persons in a position to direct the political or military action of the state.
The provision criminalizes any use of force against another state which would
constitute “a manifest violation of the Charter of the United Nations,” including those
acts enumerated in article 8bis(2). As of November 2022, the OTP has not undertaken
any investigation relating to a crime of aggression.

3.3 INTERNATIONAL CRIMINAL COURT JUDGES

AND COURT ADMINISTRATION

The administration of the ICC is ensured by three judges – a president and two vice-
presidents – elected by and from a pool of 18 sitting ICC judges for a three-year
renewable term. These three judges are responsible for the general administration of
the Court, except for the OTP. A judge is elected by the ASP to a non-renewable
nine-year term. The ICC’s first president was Philippe Kirsch of Canada.

The ICC’s other primary administrative body is the Registry, which is responsible
for the non-judicial aspects of the Court’s administration. Funding for the ICC’s
operations is raised through contributions assessed to its members, based on the scale
of assessment used by the UN. Additional funds may also be raised through voluntary
contributions by members and the UN. 52

3.4 OFFICE OF THE PROSECUTOR

Article 42 of the Rome Statute establishes the Office of the Prosecutor (OTP) as
a separate and independent organ of the ICC. The ICC prosecutor and deputy
prosecutor are elected by the ICC’s ASP for a non-renewable nine-year term.

While the OTP was created as an independent entity, the Rome Statute limits this
independence in practice by providing a number of means to the states (including
non-parties), the UN Security Council and the ICC’s other organs by which they can
check the prosecutor’s powers. 53 This balance between independence and accountability

8
THE INTERNATIONAL CRIMINAL COURT: HISTORY AND ROLE

in the powers given to the prosecutor is most evident in the exercise of its proprio motu
investigative authority.

Article 15 allows the prosecutor to initiate an investigation, but with significant

limitations. To initiate an investigation without a UN Security Council or state party
referral, the prosecutor must first apply for authorization from the Pre-Trial Chamber
by demonstrating “that there is a reasonable basis to proceed … and that the case
appears to fall within the jurisdiction of the Court.” 54 Once an investigation is
authorized, notification must be sent to all states parties and to any other state that
might normally have jurisdiction over the offence. States may then request that
the prosecutor defer the investigation on the basis of complementarity, due to
a pre-existing national investigation. The prosecutor must abide by this request unless
the Pre-Trial Chamber agrees that the investigation may continue. 55

Under article 16 of the Rome Statute, investigations or prosecutions can also be

deferred for a period of one year at the direction of the UN Security Council.
The deferral power is renewable and, theoretically, could result in an indefinite
postponement of ICC proceedings. To date the deferral power has never been used. 56

Prior to the opening of an investigation, the OTP conducts preliminary examinations

of situations referred to it or on which it has received information suggesting that
crimes within the ICC’s jurisdiction have been committed. The opening of
preliminary examinations is generally made public, with the OTP providing periodic
updates during what can be a years-long process.

Given their public nature, preliminary examinations encourage states to investigate

and prosecute offences (referred to as positive complementarity) and potentially
sound an early warning to prevent situations from escalating where the commission
of crimes may be ongoing. 57 Preliminary examinations also promote transparency
and facilitate information gathering.

A prosecutor may refuse to pursue a state or Security Council referral if they

determine that there is no reasonable basis to proceed. In such cases, the referring
party may ask the Pre-Trial Chamber to review the decision, and the Court may ask
the prosecutor to reconsider. 58 In most situations, the Court has no statutory authority
to force an investigation if, after reconsideration, the prosecutor does not proceed.
However, a different process exists when the prosecutor decides not to proceed,
where “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.” 59 In such a case, the matter must be referred to the Pre-Trial
Chamber and a majority must confirm the decision not to proceed. If the decision is
rejected, the prosecutor must continue the investigation or prosecution. 60

9
 THE INTERNATIONAL CRIMINAL COURT: HISTORY AND ROLE

3.5 CHAMBERS

3.5.1 Pre-Trial Chamber

Considered one of the ICC’s “most innovative structural developments,” 61

the Pre-Trial Chamber, which usually consists of three judges, has been described as
the Court’s gatekeeper, with significant power to influence which cases are
investigated, how those investigations are conducted and which investigations result
in trials. As previously mentioned, the Pre-Trial Chamber authorizes prosecutor-
initiated investigations, 62 decides challenges to the jurisdiction of the Court or the
admissibility of a case during the investigative stage 63 and reviews the prosecutor’s
decision not to pursue a case referred to the OTP. 64

The Pre-Trial Chamber also has a number of responsibilities during investigations.

It has the authority to issue orders and warrants as part of the investigative process,
including to protect victims and witnesses, preserve evidence, ensure the rights of
the defence and facilitate investigations. 65 The Pre-Trial Chamber can issue arrest
warrants and summonses for suspects based on applications from the prosecutor,
where it finds that there are “reasonable grounds to believe” that a crime has been
committed. 66 Once an accused is in custody, the Pre-Trial Chamber is also
responsible for ensuring the rights of the accused, including determining whether
they will be released or detained pending trial. 67

Before a case goes to trial, the Pre-Trial Chamber must confirm the charges brought
by the OTP. At confirmation hearings, the prosecutor must establish “substantial
grounds” to believe that the accused committed the crime(s) in question. The accused
is generally present at the hearing and may both challenge the evidence presented by
the prosecutor and present their own evidence. Based on the evidence presented,
the chamber may confirm or decline to confirm any of the charges presented and may
also adjourn proceedings to request that the prosecutor provide further evidence or
amend the charges. 68

3.5.2 Trial and Appeals Chambers

Once the charges have been confirmed, cases are heard by the Trial Chamber
comprising three judges. For conviction, the prosecutor must convince the judges that
the accused is guilty beyond a reasonable doubt. 69 If found guilty, the accused may be
sentenced to up to 30 years’ imprisonment; in extreme circumstances, this punishment
may be extended to life imprisonment. Sentencing can also include a reparations order
for victims.

10
 THE INTERNATIONAL CRIMINAL COURT: HISTORY AND ROLE

Finally, the Appeals Chamber can hear appeals from both the Pre-Trial and Trial
Chambers. Made up of five judges, the Appeals Chamber has the power to reverse or
amend various kinds of lower-level decisions, including reparations and sentencing
orders, or order a new trial. Decisions of the Trial Chamber may be appealed on the
grounds of procedural error, error of fact or law, or for a convicted person, any other
ground that affects the fairness or reliability of the proceedings or decision. A sentencing
decision, meanwhile, may be appealed on grounds of disproportion between the crime
and the sentence. 70 To reverse or alter an outcome of another chamber, the Appeals
Chamber must find that proceedings “were unfair in a way that affected the reliability
of the decision or sentence, or that the decision or sentence … was materially affected
by error of fact or law or procedural error.” 71

3.6 VICTIM ASSISTANCE AND PARTICIPATION

The mechanisms within the ICC and under the Rome Statute that support victims of
crime and grant them the right to participate in proceedings and claim reparations
mark a first in international criminal law. 72

Under article 68(3) of the Rome Statute, victims are allowed to participate in
ICC proceedings in which their personal interests are affected. While it does not give
victims the same rights as the prosecutor or defence has, this provision has been
interpreted by the Court to allow victims or their representatives to make statements,
present evidence and question witnesses, where doing so is consistent with the rights
of the accused and with a fair and impartial trial. 73 In cases where hundreds or
thousands of victims may be registered to participate, the Court may order that
a single common legal representative be appointed. In 2021–2022 alone,
approximately 13,000 victims participated in ICC proceedings. 74

In addition, the Trust Fund for Victims was established separately from the ICC
under the Rome Statute for the benefit of victims of crimes within the ICC’s
jurisdiction. 75 The trust fund advocates for victims, funds and implements projects
that support victims, and provides tools, assistance and expertise to victims. Funding
for the trust fund comes from state party contributions and from reparations orders. 76

4 INTERNATIONAL CRIMINAL COURT AT WORK

Now more than two decades old, the ICC has become an established feature of
the international landscape. Despite shortcomings in its record, the Court has
demonstrated the ability to investigate and try perpetrators of international crimes,
and it continues to both consolidate and expand jurisprudence in international
criminal law through the decisions of all three chambers. This section provides
a summary of the ICC’s work to date.

11
 THE INTERNATIONAL CRIMINAL COURT: HISTORY AND ROLE

4.1 STATES PARTIES TO THE ROME STATUTE

There are 123 states parties to the Rome Statute. Two former states parties have
withdrawn from the treaty pursuant to article 127(1): Burundi (in October 2017)
and the Philippines (in March 2019). 77 South Africa and the Gambia submitted notice
of their intention to withdraw from the treaty, but revoked the notice prior to it taking
effect. Only two of the five permanent members of the UN Security Council are
currently states parties: France and the United Kingdom. 78

In several instances, non-states parties have also accepted the jurisdiction of the ICC
pursuant to article 12(3) of the Rome Statute without having ratified it. Currently,
the ICC prosecutor is conducting an investigation of possible crimes committed in
Ukraine, based on a declaration under article 12(3) by Ukraine accepting the Court’s
jurisdiction. 79 Côte d’Ivoire and the State of Palestine have previously been
the subject of preliminary examinations based on a declaration under article 12(3),
but they subsequently became parties to the Rome Statute. 80

In 2021, the ICC’s operating expenses totalled €154 million. Its revenue totalled
€144 million, of which €142 million was derived from contributions assessed to
its members. The ICC’s highest assessed contributions for the year were made by
Japan (€24 million), Germany (€16 million) and France (€13 million); countries
that qualified for the lowest assessed rate paid €2,747. 81

4.2 INTERNATIONAL CRIMINAL COURT INVESTIGATIONS

AND PRELIMINARY EXAMINATIONS

As of November 2022, the ICC prosecutor had opened 17 investigations into possible
crimes committed in 16 countries. 82 Investigations were initiated based on all
three mechanisms – UN Security Council, state party referral and the ICC prosecutor’s
proprio motu authority. Prior to 2018, all state party referrals had been self-referrals,
where states request an investigation of the situation within their territory. Since then,
two investigations have been opened based on a referral from a group of states parties
regarding the situation in another state: six states parties referred the situation in
Venezuela in September 2018, and 39 states parties referred the situation in Ukraine
in March 2022 to the ICC prosecutor. 83 Both situations were already the subject of
a preliminary examination initiated by the prosecutor. Canada was one of the states
parties making the referral in both cases.

In addition, two preliminary examinations are underway to determine whether

conditions exist to initiate an investigation. Since its inception, the ICC’s OTP has
undertaken eight preliminary examinations which have not led to an investigation.

12
THE INTERNATIONAL CRIMINAL COURT: HISTORY AND ROLE

Table 1 – International Criminal Court Investigations and Preliminary Examinations

Country Opening Date Referral Mechanism

Investigations
Democratic Republic of the Congo June 2004 State party (self)
Uganda July 2004 State party (self)
Sudan (Darfur) June 2005 UN Security Council
Central African Republic (I) May 2007 State party (self)
Kenya March 2010 Prosecutor
Libya March 2011 UN Security Council
Côte d’Ivoire October 2011 Prosecutor
Mali January 2013 State party (self)
Central African Republic (II) September 2014 State party (self)
Georgia January 2016 Prosecutor
Burundi October 2017 Prosecutor
Bangladesh/Myanmar November 2019 Prosecutor
Afghanistan March 2020 Prosecutor
State of Palestine March 2021 State party (self)
Philippines September 2021 Prosecutor
Venezuela (I) November 2021 State party
Ukraine March 2022 State party
Ongoing Preliminary Examinations
Nigeria November 2010 Prosecutor
Venezuela (II) February 2020 State party (self)
Preliminary Examinations Closed Without Investigation
Colombia June 2004 Prosecutor
Guinea October 2009 Prosecutor
Honduras November 2010 Prosecutor
South Korea December 2010 Prosecutor
Registered Vessels of Comoros, May 2013 State party (self)
Greece and Cambodia
Iraq/United Kingdom May 2014 Prosecutor
Gabon September 2016 State party (self)
Bolivia September 2020 State party (self)
Sources: Table prepared by the Library of Parliament using information obtained from International Criminal
Court, Situations under investigations; and International Criminal Court, Preliminary examinations.

13
 THE INTERNATIONAL CRIMINAL COURT: HISTORY AND ROLE

4.3 INTERNATIONAL CRIMINAL COURT CASES AND TRIALS

As of November 2022, 10 of 17 ICC investigations had resulted in charges being laid

for war crimes, crimes against humanity, and in one instance, genocide.
The prosecutor has also pursued charges against individuals under article 70 of
the Rome Statute for offences against the administration of justice related to court
proceedings. Overall, 33 cases involving 49 defendants have been presented by
the ICC prosecutor. 84 Cases against 18 defendants are ongoing; 12 of these cases are
ongoing because the accused is not in ICC custody. In the cases of 31 defendants
considered closed, 10 defendants were found guilty and four were acquitted. In the
remaining 14 closed cases, the accused either died or proceedings were otherwise
terminated at the pre-trial or trial stage before a verdict was rendered (see Appendix
A). To date, the 30-year sentence handed down to Bosco Ntaganda, a Congolese
militia leader, for war crimes and crimes against humanity committed in the
Democratic Republic of the Congo is the longest ever handed down by the Court.

See Appendix A for an overview of all ICC court cases.

4.4 SELECTED RECENT CASES

4.4.1 Bemba, Bemba et al.

In 2007, the ICC prosecutor opened an investigation into possible crimes committed
in the Central African Republic (CAR) between 2002 and 2003 based on a referral
from the government of the CAR. In May 2008, on application from the prosecutor,
the Pre-Trial Chamber issued a warrant for the arrest of the Jean-Pierre Bemba
Gombo, commander in chief of the Mouvement de libération du Congo (MLC),
for the war crimes of murder, rape and pillaging and the crimes against humanity of
murder and rape allegedly committed by MLC troops in the CAR. 85

The trial of Mr. Bemba Gombo began in November 2010 and took four years to
complete, during which time the Court heard from 77 witnesses and considered over
5,700 pages of documents. In total, 5,229 persons were recognized by the Court as
victims in the case. In March 2016, the Trial Chamber rendered a unanimous guilty
verdict for two counts of crimes against humanity and three counts of war crimes.
The conviction marked the first ICC conviction for sexual violence pursuant to
criminal liability for military commanders under article 28(1)(a) of the Rome Statute.
Mr. Bemba Gombo was sentenced to 18 years of imprisonment.

14
 THE INTERNATIONAL CRIMINAL COURT: HISTORY AND ROLE

In June 2018, Mr. Bemba Gombo’s conviction was reversed on appeal and he was
acquitted of all charges. In a 3–2 decision, the Appeals Chamber found that the Trial
Chamber had erred in a number of its findings, including the conclusion that
Mr. Bemba Gombo had failed to take all necessary and reasonable measures to
prevent the crimes committed by his troops. 86 The appeal decision has been strongly
criticized for its reasoning and its practical implications for future cases by
the dissenting appeals judges and the ICC prosecutor, 87 among others.

In a separate decision in October 2016, Mr. Bemba Gombo and four other individuals
were found guilty of offences against the administration of justice relating to the false
testimony of defence witnesses in the first Bemba. The five defendants were
sentenced to prison terms ranging from six months to two years and six months,
and fined from €30,000 to €300,000. 88

4.4.2 Gbagbo and Blé Goudé

In October 2011, the ICC prosecutor received authorization to open an investigation

into the situation in Côte d’Ivoire under the prosecutor’s proprio motu power.
The decision came after the Côte d’Ivoire government reconfirmed its acceptance of
ICC jurisdiction under article 12(3) of the Rome Statute earlier in the year. 89
The investigation focused on possible crimes against humanity committed during
violence in 2010 and 2011, following disputed presidential elections. Three weeks
after opening the investigation, the prosecutor applied to the Pre-Trial Chamber for
an arrest warrant against former Ivorian President Laurent Gbagbo. Mr. Gbagbo was
transferred to the ICC by Ivorian authorities a month later, marking the first time
a former head of state was taken into ICC custody. 90 Shortly afterwards, an arrest
warrant was issued for Charles Blé Goudé, former minister of youth under Mr. Gbagbo.
Ivorian authorities surrendered Mr. Blé Goudé to the ICC in March 2014.

The cases of the two defendants were joined following the confirmation of charges
for both on four counts of crimes against humanity (murder, rape, other inhumane
acts, or in the alternative attempted murder and persecution). The trial began in
January 2016. Shortly after the prosecutor finished presenting her case in June 2018,
both defendants filed no-case-to-answer motions, claiming the prosecutor had not
presented sufficient evidence to justify a conviction. 91 In January 2019, the Trial
Chamber granted the defendants’ motion by a two-to-one majority and acquitted both
of all charges. 92 Both acquittals were upheld on appeal in March 2021, at which time
all conditions imposed in 2019 on the defendants’ release following their acquittal
were removed.

15
 THE INTERNATIONAL CRIMINAL COURT: HISTORY AND ROLE

4.4.3 Ntaganda

Opened in June 2004 pursuant to a self-referral, the investigation into the situation
in the Democratic Republic of the Congo (DRC) was the ICC’s first investigation
and to date has led to six cases being brought to trial. In 2006, an arrest warrant was
issued by the ICC for Bosco Ntaganda, deputy chief of staff of the Forces patriotiques
pour la libération du Congo (FPLC), for 18 counts of war crimes and crimes against
humanity – including murder, rape, sexual slavery and the conscription of child
soldiers – committed by FPLC forces in the Ituri region of the DRC in 2002 and 2003.
A warrant was also issued for the FPLC commander in chief, Thomas Lubanga Dyilo.
While Lubanga was surrendered to the ICC by DRC authorities in 2006 and eventually
convicted of war crimes by the Court in 2012, Ntaganda lived openly in the DRC for
years before voluntarily surrendering to the U.S. Embassy in Rwanda in 2013
and requesting a transfer to ICC custody. 93

Charges against Mr. Ntaganda were confirmed in February 2014 and his trial ran
from September 2015 to August 2018. In total, 2,129 victims participated in the trial,
during which the Trial Chambers rendered 347 written decisions and 257 oral decisions.
In July 2019, Mr. Ntaganda was found guilty of all 18 counts and sentenced to 30 years
in prison. Both the conviction and sentence were upheld on appeal in March 2021.
In the same month, the Trial Chamber issued a reparations order, finding Mr. Ntaganda
liable for US$30 million in reparations to direct and indirect victims of his crimes. As
the Court found him to be indigent, it encouraged the Trust Fund for Victims
to complement the award to the extent its resources would allow. 94

Ntaganda has been recognized as a milestone case for the ICC’s handling of sexual
violence crimes. The case marks the first time a conviction for sexual violence is
upheld on appeal. The Court also confirmed that crimes of sexual violence committed
against members of an accused’s own forces – in this case, both female and male
child soldiers – constituted a crime within the Court’s jurisdiction. 95

5 CRITICISMS OF THE INTERNATIONAL CRIMINAL COURT

The Rome Statute and the ICC have faced criticism since their inception. From
the start, ICC sceptics have pointed to perceived flaws in the statute and the Court as
potentially leading to undesirable outcomes, including the potential abuse of
prosecutorial discretion or the possibility of ICC cases undermining efforts to achieve
peace and reconciliation in post-conflict countries. 96

However, after more than two decades of practice, ICC supporters have also become
critical of a court that has managed only five convictions for core crimes and seen
many high-profile cases end in acquittal or be terminated without verdict.
The process of moving from investigation through arrest, trial and likely appeal has
proven an enormously complex undertaking that has often taken a decade or more

16
 THE INTERNATIONAL CRIMINAL COURT: HISTORY AND ROLE

to complete. Defendants can spend much of this time in custody – some for crimes
for which they are ultimately acquitted, as seen in Bemba and Gbagbo and Blé Goudé,
while victims may be forced to continue waiting for promised reparations even after
this process is complete.

No organ of the ICC has been immune to criticism, as chambers at all levels, the OTP
and states parties have all been blamed in part for the Court’s lacklustre record to
date. In December 2019, the ASP expressed grave concern over the “multifaceted
challenges” the ICC faced, and it commissioned an independent expert review of the
entire Rome Statute system. 97 A group of nine experts was divided into
three thematic working groups – governance, judiciary, and preliminary examinations,
investigations and prosecutions – and tasked with delivering “concrete, achievable
and actionable recommendations aimed at enhancing the performance, efficiency and
effectiveness of the Court.” 98 The experts published their final report in
September 2020; in it, they concurred with many of the criticisms levelled against the
Court and made 384 recommendations to improve the functioning of the
Rome Statute system. 99

5.1 CHAMBERS

ICC judges have been criticized for the inconsistent manner in which they have
applied and developed international criminal jurisprudence and the procedures of the
Court. In their final report, the ASP’s experts highlighted a lack of collegiality among
judges as an important factor in the inconsistent practice of the Court. The experts
found that poor working relationships between judges at times undermined a
deliberative environment, fostered a proliferation of dissenting and concurring
opinions, and encouraged some judges to be overly reliant on jurisprudence and
procedure from their home jurisdiction. 100

The report also pointed to contradictory procedural practices at times – particularly at

the pre-trial stage – which by now should be well established. Issues such as whether
evidence must be positively admitted by judges or simply submitted by parties,
and whether the practice of preparing witnesses to testify is acceptable or potentially
taints evidence, are cited as examples of inconsistent practices that add to
the complexity and length of proceedings. 101

The ASP’s experts, among other commentators, have singled out the appeals decision
in Bemba as an example of the difficulty of promoting “coherent and accessible
jurisprudence.” 102 The decision deviates from jurisprudence on the role of pre-trial
confirmation hearings and the standard of review for appeal decisions, and it was
described by one commentator as “upend[ing] the procedures at the ICC and turn[ing]
the Court on its head.” 103 Another commentator called the inability of trial and appeal
judges to agree on a “fundamental and simple point” regarding the charges in question
“a complete failure of the Court’s judicial process.” 104

17
 THE INTERNATIONAL CRIMINAL COURT: HISTORY AND ROLE

5.2 OFFICE OF THE PROSECUTOR

Considering the responsibility and discretion the Rome Statute gives the OTP, it is
understandable that ICC prosecutors have faced significant criticism over their
inability to secure convictions at trial. After being sworn in as the third ICC
prosecutor in June 2021, Karim Khan alluded to the criticism his office has faced:
“We cannot invest so much, we cannot raise expectations so high, and achieve
so little so often in the court room. He further stated that he would prioritize
“building stronger cases and getting better results” as part of an effort to “revive”
the institution and “repair what is broken.” 105

In their report, the ASP’s experts note that the principle of complementarity at
the heart of the Rome Statute means that the OTP should not and cannot be expected
to investigate all crimes that fall within its jurisdiction. As such, the proper selection
and prioritization of preliminary examinations and investigations, given the resources
available, is critical to the OTP’s effectiveness. The ASP’s experts found that some
stakeholders believed the OTP was spreading its resources too thinly and not properly
allocating resources to the preliminary examinations and investigations of the gravest
crimes and which had the greatest likelihood of success. 106

The OTP has itself recognized that a lack of resources affects its ability to fulfill its
mandate. For example, in a December 2020 report, the OTP stated it would not
immediately seek to open investigations in Ukraine and Nigeria despite finding that
the legal conditions had been met because of the OTP’s operational capacity and
the need to prioritize its workload. 107

In terms of bringing cases to trial, the experts’ report acknowledges that the OTP
faces a challenge balancing its obligation to investigate those “most responsible” for
crimes with the practical consideration of pursuing cases that have a high likelihood
of success. The report notes that the OTP’s strategy of bringing a small number of
cases against high-level officials has not achieved the desired results. The ASP’s
experts welcomed the OTP’s shift to including lower-level suspects who are more
directly involved in the crimes perpetrated in the definition of those
“most responsible.” 108 Others have pointed out that such an approach could provide
“economies of scale” whereby the successful prosecution of lower-level perpetrators
could assist in building cases against senior officials. 109

18
 THE INTERNATIONAL CRIMINAL COURT: HISTORY AND ROLE

5.3 STATES PARTIES

Under the Rome Statute, states parties have a binding obligation to “cooperate fully”
with the Court in its investigation and prosecution of crimes. 110 Experience has
shown that this cooperation is crucial to the successful prosecution of criminals, and
states have been criticized for either their limited cooperation or their outright non-
cooperation with the Court in its investigations. As noted earlier, two states have
withdrawn from the ICC following the announcement of preliminary examinations on
their territory. The ICC also ruled that states parties failed to comply with their
obligation to cooperate in several cases, most notably in the case of Omar Al Bashir,
subject of an ICC arrest warrant and former head of state of Sudan, whom at least
eight states failed to arrest when he was present on their territory. 111

Short of non-cooperation, commentators have noted how states can be more or less
cooperative with the ICC, depending on their own political calculations. 112 States
may cooperate fully in investigations of their political rivals, while limiting
cooperation for investigations of their allies. Such uneven support risks undermining
the credibility of the Court where it is seen as punishing only one side of a conflict.
The ICC investigation in Côte d’Ivoire demonstrates this concern in practice.
Laurent Gbagbo and his ally, Charles Blé Goudé, were handed over to the ICC
and tried with the support of the Ivorian government, while the OTP investigation
into crimes committed by pro-government forces – which may have been of equal
gravity – has yet to result in an arrest warrant being issued. 113

While not included among the topics for their review, the ASP’s experts also felt
obliged to call out states parties for the practice of trading votes in the election of
ICC judges. The experts noted the view among some that certain ICC judges owe
their position more to political negotiations between states than to their qualifications
or competence. 114

5.4 FOCUS ON AFRICA

To date, ICC investigations and trials have focused disproportionately on Africa.

All ICC trials have been against Africans, and a large majority of preliminary
examinations and investigations have related to situations in Africa. This has led
to criticism of the ICC, including suggestions that the Court is racist or acting as
an imperialist tool of African subjugation. 115 This perceived bias against Africa has
motivated calls for the mass withdrawal of African countries from the Rome Statute
and for African governments to not cooperate in the Court’s investigations and trials.
The African Union has also taken steps to establish a regional criminal court to try cases
that would otherwise be within the ICC’s jurisdiction. 116 In the face of this criticism,
supporters of the Court have pointed out that the ICC largely does not choose its cases
and that most of the investigations that the ICC has carried out in Africa were the result
of either referrals by the UN Security Council or self-referrals by the African states.

19
 THE INTERNATIONAL CRIMINAL COURT: HISTORY AND ROLE

One of the sources of the dispute between African states – often engaging collectively
through the African Union – and the ICC has been the question of immunity for
heads of state and other senior government officials. The African Union maintains
that customary international law provides immunity to such individuals and that
article 27 of the Rome Statute removes that immunity only from states parties.
Proponents of this interpretation point to article 98 of the Rome Statute, which
prevents the Court from requiring state cooperation that is inconsistent with a state’s
other international legal obligations. 117 In a recent decision regarding Jordan’s failure
to arrest Omar Al-Bashir who, at the time, was head of state of Sudan,
the ICC Appeals Chamber rejected this argument, stating that such individuals do not
have immunity in international courts and therefore states parties are required
to cooperate with the ICC. 118

5.5 INTERNATIONAL CRIMINAL COURT AND THE UNITED STATES

The U.S. position concerning the ICC has varied with each administration.
The U.S. government signed the Rome Statute in December 2000 under
President Bill Clinton, only to renounce any obligations under that treaty in
May 2002 under President George W. Bush. The possibility of U.S. military
personnel being the subject of an ICC investigation or trial was a significant concern
for the Bush administration. In August 2002, the U.S. government passed
the American Servicemembers’ Protection Act (ASPA) which restricted
U.S. cooperation with the ICC and sought to prevent U.S. military personnel from
being taken into ICC custody.

Once the ASPA was enacted, the U.S. government began negotiating bilateral
immunity agreements with nations around the world in apparent accordance with
article 98(2) of the Rome Statute. 119 States that signed these agreements promised not
to surrender U.S. citizens on their territory to the ICC. Subject to a national interest
waiver, the ASPA denied U.S. military assistance (education, training and financing)
to states that had not signed such agreements (except members of the North Atlantic
Treaty Organization [NATO], major non-NATO allies and Taiwan).

Under President Barack Obama’s administration, the U.S. government’s position toward
the ICC softened. 120 Then Secretary of State Hillary Clinton stated that “we will end
hostility toward the ICC and look for opportunities to encourage effective ICC action
in ways that promote U.S. interests by bringing war criminals to justice.” 121
By late 2009, the U.S. began to participate in the ASP as an observer, and over time,
the government stopped resisting references to the ICC in UN resolutions. U.S. support
for the UN Security Council’s unanimous resolution to refer the situation in Libya to
the ICC in 2011 was an important step. 122 Another example of increased cooperation
was the expansion of the U.S. government’s Rewards for Justice program, which
offers up to US$5 million for information leading to the arrest of ICC fugitives. 123

20
 THE INTERNATIONAL CRIMINAL COURT: HISTORY AND ROLE

Cooperation between the U.S. and the ICC regressed significantly under
President Donald Trump. Increasing U.S. hostility toward the ICC was fuelled by
the ICC prosecutor’s decision to open investigations into the situations in Afghanistan
and the State of Palestine. 124 The U.S. objected to the ICC investigation of
U.S. personnel’s actions in Afghanistan and to the Court’s recognition of Palestinian
statehood for the purposes of the Rome Statute and its investigation into the actions
of Israel – a close U.S. ally which is not a state party to the Rome Statute – in
the Palestinian territories. 125

In April 2019, the U.S. revoked the travel visa of ICC prosecutor Fatou Bensouda. 126
In June 2020, President Trump issued an executive order authorizing economic
sanctions against ICC staff based on a finding that any attempt by the ICC to investigate,
arrest or prosecute U.S. or allied personnel without the consent of the U.S. or its allies
“constitutes an unusual and extraordinary threat to the national security and foreign
policy of the United States.” 127 In September 2020, the U.S. imposed economic
sanctions on Fatou Bensouda and Phakiso Mochochoko, Head of the Jurisdiction,
Complementarity and Cooperation Division of the OTP. 128

Under President Joe Biden, the U.S. government terminated the authority for
sanctions against ICC staff and removed sanctions against Ms. Bensouda
and Mr. Mochochoko in April 2021. 129 In announcing the removal of sanctions
and visa restrictions, however, the Biden administration reconfirmed U.S. opposition
to the ICC investigations in Afghanistan and the Palestinian territories and the
Court’s assertion of jurisdiction over U.S. and Israeli personnel. 130

6 CONCLUSION

With more than 20 years of experience, the ICC has become an established, if still
controversial, part of the international system. Despite its shortcomings, the Court has
proven a worthy successor to the international tribunals which preceded it and has
demonstrated the viability of a permanent international criminal justice system.

However, as the ICC enters its third decade, it faces significant challenges. The most
pressing of which is the continuation of the unimaginable atrocities which motivated
its creation. As Judge Chile Eboe-Osuji, ICC President at the time, remarked on the
occasion of the 20th anniversary of the Rome Statute, “[H]umanity’s need of the
Rome Statute and the ICC is as critical today as was the case 20 years ago – indeed
more so.” 131 As the Court’s development continues and it looks to reform, the
purpose for which it was created remains unfulfilled.

21
THE INTERNATIONAL CRIMINAL COURT: HISTORY AND ROLE

NOTES

1. International Criminal Court (ICC), Rome Statute of the International Criminal Court.
2. “The idea of an international criminal court traces back to 1474, when Peter Von Hagenbush was tried and
convicted by Austrians for crimes against ‘God and man,’ following his rule over the people of Breisach.”
Sandra L. Jamison, “A Permanent International Criminal Court: A Proposal That Overcomes Past
Objections,” Denver Journal of International Law and Policy, Vol. 23, No. 2, 1995, p. 421.
3. United States (U.S.), Department of State, Office of the Historian, “The Nuremberg Trial and the
Tokyo War Crimes Trials (1945–1948),” Milestones: 1945–1952.
4. United Nations (UN), “Agreement for the prosecution and punishment of the major war criminals of the
European Axis. Signed at London, on 8 August 1945,” (Nuremberg Charter), Treaty Series, vol. 82, 1951,
p. 280; and UN, “Charter of the International Military Tribunal,” Treaty Series, vol. 82, 1951, p. 286 and
288, art. 6.
At the time the Nuremberg Charter was established, genocide was not yet recognized as an independent
crime under international law.
5. International Military Tribunal (Nuremberg), “Judicial Decisions: International Military Tribunal
(Nuremberg) – Judgment and Sentences, October 1, 1946,” American Journal of International Law,
Vol. 41, No. 1, 1947, pp. 172–333 [SUBSCRIPTION REQUIRED].
6. UN, Office of the High Commissioner for Human Rights, Convention on the Prevention and Punishment of
the Crime of Genocide, 9 December 1948.
7. Ibid., art. 1.
8. International Committee of the Red Cross (ICRC), “Convention (I) for the Amelioration of the Condition of
the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949,” Treaties and States
Parties, International Humanitarian Law Databases, accessed 29 November 2022; ICRC, “Convention (II)
for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at
Sea. Geneva, 12 August 1949,” Treaties and States Parties, International Humanitarian Law Databases,
accessed 29 November 2022; ICRC, “Convention (III) Relative to the Treatment of Prisoners of War.
Geneva, 12 August 1949,” Treaties and States Parties, International Humanitarian Law Databases,
accessed 29 November 2022; and ICRC, “Convention (IV) relative to the Protection of Civilian Persons in
Time of War. Geneva, 12 August 1949,” Treaties and States Parties, International Humanitarian Law
Databases, accessed 29 November 2022.
9. UN, General Assembly, 260 (III). Prevention and punishment of the crime of genocide, 9 December 1948,
p. 177.
10. M. Cherif Bassiouni, “Historical Survey: 1919–1998,” in M. Cherif Bassiouni, ed., International and
Comparative Criminal Law Series – The Statute of the International Criminal Court: A Documentary
History, Vol. 2, 1 February 1999, p. 17.
11. The International Criminal Tribunal for the former Yugoslavia (ICTY) was created pursuant to
Resolution 827, the ICTY Statute. See UN Security Council, Resolution 827 (1993), 25 May 1993.
12. The International Criminal Tribunal for Rwanda (ICTR) was created pursuant to Resolution 955,
the ICTR Statute. See UN Security Council, Resolution 955 (1994), 8 November 1994.
13. In 2010, the UN Security Council created the International Residual Mechanism for Criminal Tribunals
(IRMCT) to allow for the closure of the ICTY and ICTR by providing a shared institution responsible for
concluding any lingering judicial matters, including the possible trial of remaining fugitives and the hearing
of appeals against tribunal decisions. The IRMCT’s work was ongoing at the time of writing. See UN
IRMCT, “The ICTR in Brief,” About the ITCR; and IRMCT, ICTY, Key Figures of the Cases.
14. Helena Cobban, “International Courts,” Foreign Policy, No. 153, March–April 2006, pp. 22–28
[SUBSCRIPTION REQUIRED]; and George S. Yacoubian, Jr., “Evaluating the Efficacy of the International
Criminal Tribunals for Rwanda and the Former Yugoslavia: Implications for Criminology and International
Criminal Law,” World Affairs, Vol. 165, No. 3, Winter 2003, pp. 133–141 [SUBSCRIPTION REQUIRED].
15. Louise Arbour, “The Prosecution of International Crimes: Prospects and Pitfalls,” Washington University
Journal of Law and Policy, Vol. 1, 1999, p. 18.

22
THE INTERNATIONAL CRIMINAL COURT: HISTORY AND ROLE

16. Michael J. Matheson and David Scheffer, “The Creation of the Tribunals,” American Journal of
International Law, Vol. 110, No. 2, April 2016, p. 190 [SUBSCRIPTION REQUIRED].
17. Christopher Greenwood, “What the ICC Can Learn from the Jurisprudence of Other Tribunals,”
Harvard International Law Journal, Vol. 58, Spring 2017, p. 71.
18. Melissa K. Marler, “The International Criminal Court: Assessing the Jurisdictional Loopholes in
the Rome Statute,” Duke Law Journal, Vol. 49, No. 3, December 1999, p. 829.
19. UN, International Law Commission, Draft Statute for an International Criminal Court, 1994, 2005.
20. Philippe Kirsch and John T. Holmes, “The Rome Conference on an International Criminal Court:
The Negotiating Process,” American Journal of International Law, Vol. 93, No. 1, January 1999, p. 8
[SUBSCRIPTION REQUIRED].
21. The Bureau of the Committee of the Whole was chaired by Canadian delegate Philippe Kirsch.
22. In that letter, John Bolton, then U.S. Under Secretary of State for Arms Control and International Security,
told the UN Secretary General at the time, Kofi Annan:
This is to inform you, in connection with the Rome Statute of the International Criminal
Court adopted on July 17, 1998, that the United States does not intend to become a party to
the treaty. Accordingly, the United States has no legal obligations arising from its signature
on December 31, 2000. The United States requests that its intention not to become a party,
as expressed in this letter, be reflected in the depositary’s status lists relating to this treaty.
U.S., Department of State, International Criminal Court: Letter to UN Secretary General Kofi Annan,
News release, 6 May 2002.
23. Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24.
24. ICC, Regulations of the Court, 2018; ICC, Rules of Procedure and Evidence, 2019; and ICC, Elements of
Crimes, 2013.
25. ICC, Rome Statute of the International Criminal Court, arts. 25 and 27–28.
26. Ibid., art. 11.
27. An ICC investigation may be initiated when the UN Security Council determines that there has been
a breach of international peace and security. See UN, Charter of the United Nations and Statute of
the International Court of Justice, 1945, art. 39, p. 9.
28. ICC, Rome Statute of the International Criminal Court, art. 15.
29. Ibid., art. 17(1)(a).
30. Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24.
31. ICC, Rome Statute of the International Criminal Court, 17 July 1998, art. 5.
32. Ibid., footnote 1; and Claus Kreß, “Editorial Comment: On the Activation of ICC Jurisdiction over the Crime
of Aggression,” Journal of International Criminal Justice, Vol. 16, March 2018.
33. UN, Amendments on the crime of aggression to the Rome Statute of the International Criminal Court,
8 May 2013; ICC, Assembly of States Parties to the Rome Statute (ASP), “Crime of Aggression –
Amendments Ratification,” Treaty Series; and ICC, ASP, Resolution ICC-ASP/16/Res.5: Activation of the
jurisdiction of the Court over the crime of aggression, 14 December 2017.
34. ICC jurisdiction for crimes of aggression involving states which have not ratified the 2010 amendments is
limited to cases referred to the Court by the UN Security Council. See Claus Kreß, “Editorial Comment: On
the Activation of ICC Jurisdiction over the Crime of Aggression,” Journal of International Criminal Justice,
Vol. 16, March 2018; and Donald M. Ferencz, Aggression Is No Longer a Crime in Limbo,
FICHL Policy Brief Series No. 88, 2018.
35. ICC, Elements of Crimes, 2013.
36. Article 21 of the Rome Statute lists three tiers of law which the ICC shall apply. Primary sources: the
Rome Statute, Elements of Crimes, and Rules of Procedure and Evidence. Secondary sources: applicable
treaties and rules and principles of international law. Tertiary sources: legal principles derived from national
legal systems. See ICC, Rome Statute of the International Criminal Court, art. 21(1).
37. Cornell Law School, “genocide,” Wex, Legal Information Institute.

23
THE INTERNATIONAL CRIMINAL COURT: HISTORY AND ROLE

38. ICC, Rome Statute of the International Criminal Court, art. 6.

39. For a discussion of the elements of the crime of genocide, including the specific intent requirement,
see ICC, Situation in Darfur, Sudan: In the Case of The Prosecutor v. Omar Hassan Ahmad Al Bashir
(“Omar Al Bashir”) – Decision on the Prosecution’s Application for a Warrant of Arrest against
Omar Hassan Ahmad Al Bashir, Pre-Trial Chamber I, No. ICC-02/05-01/09, 4 March 2009.
40. See, for example, ICC, “Genocide by killing,” Elements of Crimes, 2013, art. 6(a)(4).
41. ICC, Situation in Darfur, Sudan: In the Case of The Prosecutor v. Omar Hassan Ahmad Al Bashir
(“Omar Al Bashir”) – Decision on the Prosecution’s Application for a Warrant of Arrest against
Omar Hassan Ahmad Al Bashir, Pre-Trial Chamber I, No. ICC-02/05-01/09, 4 March 2009, para. 124.
42. Kai Ambos, “Crimes Against Humanity and the International Criminal Court,” in Leila N. Sadat, ed., Forging
a Convention for Crimes Against Humanity, 1st ed., 2011.
43. ICC, Elements of Crimes, 2013, p. 3, footnote 6.
44. ICRC, Advisory Service on International Humanitarian Law, War Crimes under the Rome Statute of
the International Criminal Court and their source in International Humanitarian Law – Comparative Table,
October 2008.
45. ICC, Rome Statute of the International Criminal Court, art. 8(2)(b); and ICRC, Persons protected under
IHL, 29 October 2010.
46. ICRC, “Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces
in the Field. Geneva, 12 August 1949: Commentary of 2016 – Article 3: Conflicts Not of an International
Character,” Treaties and States Parties, International Humanitarian Law Databases, accessed
29 November 2022.
47. For an example of factors considered when determining whether the threshold is met, see ICC, Situation
in the Central African Republic: In the Case of The Prosecutor v. Jean-Pierre Bemba Gombo – Judgment
pursuant to Article 74 of the Statute, Trial Chamber III, No. ICC-01/05-01/08, 21 March 2016, para. 137.
48. ICC, Office of the Prosecutor (OTP), Policy Paper on Sexual and Gender-Based Crimes, June 2014, p. 15.
49. ICC, Situation in the Central African Republic: In the Case of The Prosecutor v. Jean-Pierre Bemba Gombo –
Judgment pursuant to Article 74 of the Statute, Trial Chamber III, No. ICC-01/05-01/08, 21 March 2016,
para. 142; and ICC, Elements of Crimes, 2013, art. 8.
50. ICC, Rome Statute of the International Criminal Court, art. 121(5); and ICC, ASP, “Rome Statute –
Amendments,” Rome Statute and other agreements.
51. Alex Whiting, “Crime of Aggression Activated at the ICC: Does it Matter?,” Just Security, 19 December 2017,
p. 9.
52. ICC, Rome Statute of the International Criminal Court, arts. 115–117.
53. Jan Wouters, Sten Verhoeven and Bruno Demeyere, The international criminal court’s office of
the Prosecutor: navigating between independence and accountability?, Working paper, Institute
for International Law, K.U. Leuven Faculty of Law, University of Leuven, July 2006.
54. ICC, Rome Statute of the International Criminal Court, arts. 15(3) and 15(4).
55. Ibid., art. 18.
56. A 2013 draft resolution to defer proceedings against the president and deputy president of Kenya failed
to win the necessary support of the UN Security Council. See Security Council Report, “In Hindsight:
The Security Council and the International Criminal Court,” August 2018 Monthly Forecast, 31 July 2018.
57. ICC, OTP, Policy Paper on Preliminary Examinations, November 2013, para. 104.
58. ICC, Rome Statute of the International Criminal Court, art. 53.
59. Ibid., art. 53(1)(c).
60. ICC, Rules of Procedure and Evidence, 2019, Rule 110.
61. Jocelyn Courtney and Christodoulos Kaoutzanis, “Proactive Gatekeepers: The Jurisprudence of the ICC’s
Pre-Trial Chambers,” Chicago Journal of International Law, Vol. 15, No. 2, Winter 2015, p. 520.
62. ICC, Rome Statute of the International Criminal Court, art. 15(4).

24
THE INTERNATIONAL CRIMINAL COURT: HISTORY AND ROLE

63. Ibid., arts. 18(2) and 19(6).

64. Ibid., art. 53(3).
65. Ibid., art. 57.
66. Ibid., art. 58.
67. Ibid., art. 60.
68. Ibid., art. 61.
69. Ibid., art. 66.
70. Ibid., arts. 81 and 82.
71. Ibid., art. 83(2).
72. The Trust Fund for Victims, “Our goals,” About us.
73. See also Christine Van den Wyngaert, “Victims Before International Criminal Courts: Some Views
and Concerns of an ICC Trial Judge,” Case Western Reserve Journal of International Law, Vol. 44, No. 1,
2011, p. 488.
74. UN, General Assembly, Report of the International Criminal Court , 19 August 2022, p. 4.
75. ICC, Rome Statute of the International Criminal Court, art. 79.
76. The Trust Fund for Victims, What we do; and The Trust Fund for Victims, “Our goals,” About us.
77. In both cases, the notice of withdrawal was filed following the announcement by the OTP of preliminary
examinations in the respective countries. Both preliminary examinations led to the opening of formal
investigations. See ICC, Burundi; and ICC, Republic of the Philippines.
78. UN, Treaty Collection, Rome Statute of the International Criminal Court, 17 July 1998, endnote 2.
79. ICC, Ukraine.
80. The State of Palestine became a state party to the Rome Statute in 2015. Reference to the State of
Palestine in this document refers uniquely to its status pursuant to the Rome Statute as recognized by
the ICC and the ASP and should not be construed as expressing an opinion regarding Palestinian
statehood on the part of the author or the Library of Parliament. See ICC, ICC welcomes Palestine as
a new State Party, News release, 1 April 2015.
81. ICC, ASP, Financial statements of the International Criminal Court for the year ended 31 December 2021,
22 August 2022.
82. The ICC prosecutor initiated two investigations related to the situation in the Central African Republic:
one opened in 2007 related to a conflict in 2002–2003, and one opened in 2014 related to possible crimes
committed since 2012. In both cases, the situation was referred to the prosecutor by the Central African
Republic. See ICC, Central African Republic; and ICC, Central African Republic II.
83. ICC, Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, on the referral
by a group of six States Parties regarding the situation in Venezuela, 27 September 2018; and ICC,
Statement of ICC Prosecutor, Karim A.A. Khan QC, on the Situation in Ukraine: Receipt of Referrals
from 39 States Parties and the Opening of an Investigation, 2 March 2022.
84. Cases include arrest warrants issued by the ICC for Vladimir Vladimirovich Putin and Maria Alekseyevna
Lvova-Belova, as announced by the court in March 2023. At the time of writing, it is unknown whether the
two accused will be tried together as a single case or separately. See ICC, Situation in Ukraine: ICC
judges issue arrest warrants against Vladimir Vladimirovich Putin and Maria Alekseyevna Lvova-Belova,
News release, 17 March 2023.
85. ICC, Situation in the Central African Republic: The Prosecutor v. Jean-Pierre Bemba Gombo,
Case information sheet.
86. ICC, Summary of the Appeal Judgment in the case The Prosecutor vs Jean-Pierre Bemba Gombo,
8 June 2018.

25
THE INTERNATIONAL CRIMINAL COURT: HISTORY AND ROLE

87. Ibid.; ICC, Statement of ICC Prosecutor, Fatou Bensouda, on the recent judgment of
the ICC Appeals Chamber acquitting Mr Jean-Pierre Bemba Gombo, 13 June 2018; Leila N. Sadat,
“Fiddling While Rome Burns? The Appeals Chamber’s Curious Decision in Prosecutor v.
Jean-Pierre Bemba Gombo,” EJIL:Talk!, Blog of the European Journal of International Law, 12 June 2018;
and Alex Whiting, “Appeals Judges Turn the ICC on its Head with Bemba Decision,” Just Security,
14 June 2018.
88. ICC, Situation in the Central African Republic: The Prosecutor v. Jean-Pierre Bemba Gombo,
Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidèle Babala Wandu and Narcisse Arido,
Case information sheet.
89. ICC, Côte d’Ivoire.
90. Human Rights Watch, Côte d’Ivoire: Gbagbo’s ICC Transfer Advances Justice, 29 November 2011.
91. ICC, Situation in Côte d’Ivoire: The Prosecutor v. Laurent Gbagbo and Charles Blé Goudé,
Case information sheet.
92. ICC, Situation in the Republic of Côte d’Ivoire: In the Case of The Prosecutor v. Laurent Gbagbo
and Charles Blé Goudé – Reasons for oral decision of 15 January 2019 on the Requête de la Défense
de Laurent Gbagbo afin qu’un jugement d’acquittement portant sur toutes les charges soit prononcé
en faveur de Laurent Gbagbo et que sa mise en liberté immédiate soit ordonnée, and on the
Blé Goudé Defence no case to answer motion, Trial Chamber I, No. ICC-02/11-01/15, 16 July 2019.
93. ICC, Situation in the Democratic Republic of the Congo: The Prosecutor v. Thomas Lubanga Dyilo,
Case information sheet; and Wairagala Wakabi, “Appeals Judges Confirm Ntaganda’s ICC Conviction and
30-Year Sentence,” International Justice Monitor, 31 March 2021.
94. ICC, Ntaganda case: ICC Trial Chamber VI orders reparations for victims, News release, 8 March 2021.
95. Jennifer Tridgell, “Casenote: Prosecutor v. Ntaganda: the end of impunity for sexual violence
against child soldiers?,” Australian International Law Journal, Vol. 23, 2017 [SUBSCRIPTION REQUIRED]; and
Rosemary Grey, “Gender-based crimes: A monumental day for the ICC,” IntLawGrrls blog, 8 July 2019.
96. Concerns over ICC investigations impeding peace and reconciliation efforts have been raised in
Côte d’Ivoire, Sudan and Uganda, among others. See Nick Grono and Adam O’Brien, “Justice in Conflict:
The ICC and Peace Processes,” International Crisis Group, 12 March 2008; and Jessica Moody,
“Does the ICC Obstruct Peace?,” Foreign Policy, 22 October 2021.
97. ICC, ASP, Resolution ICC-ASP/18/Res.7: Review of the International Criminal Court and the
Rome Statute system, 6 December 2019, p. 1.
98. Ibid., p. 2.
99. ICC, ASP, Independent Expert Review of the International Criminal Court and the Rome Statute System,
Final report, 30 September 2020.
100. Ibid., p. 147.
101. Ibid., pp. 177–179.
102. Ibid., p. 148.
103. Alex Whiting, “Appeals Judges Turn the ICC on its Head with Bemba Decision,” Just Security,
14 June 2018.
104. Leila N. Sadat, “Fiddling While Rome Burns? The Appeals Chamber’s Curious Decision in Prosecutor v.
Jean-Pierre Bemba Gombo,” EJIL:Talk!, Blog of the European Journal of International Law, 12 June 2018.
105. Susan Kendi, “Karim Khan’s first speech as ICC Prosecutor,” Journalists for Justice, 28 December 2021.
106. ICC, ASP, Independent Expert Review of the International Criminal Court and the Rome Statute System,
Final report, 30 September 2020, pp. 206–212.
107. ICC, OTP, Report on Preliminary Examination Activities 2020, 14 December 2020. An investigation into
the situation in Ukraine was opened in March 2022.
108. ICC, ASP, Independent Expert Review of the International Criminal Court and the Rome Statute System,
Final report, 30 September 2020, pp. 214–219.
109. Ben Batros, “The ICC Acquittal of Gbagbo: What Next for Crimes against Humanity?,” Just Security,
18 January 2019.

26
THE INTERNATIONAL CRIMINAL COURT: HISTORY AND ROLE

110. ICC, Rome Statute of the International Criminal Court, art. 86.
111. ICC, ASP, Non-cooperation.
112. Courtney Hillebrecht and Scott Straus, “Who Pursues the Perpetrators? State Cooperation with the ICC,”
Human Rights Quarterly, Vol. 39, No. 1, February 2017, pp. 162–188 [SUBSCRIPTION REQUIRED].
113. Human Rights Watch, ICC: Former Ivorian President Gbagbo on Trial – Concrete Action Needed Against
Pro-Ouattara Forces, 28 January 2016.
114. ICC, ASP, Independent Expert Review of the International Criminal Court and the Rome Statute System,
Final report, 30 September 2020, p. 317.
115. Oumar Ba, “International Justice and the Postcolonial Condition,” Africa Today, Vol. 63, No. 4,
Summer 2017 [SUBSCRIPTION REQUIRED].
116. Sascha-Dominik Dov Bachmann and Naa A. Sowatey-Adjei, “The African Union–ICC Controversy
Before the ICJ: A Way Forward to Strengthen International Criminal Justice?,” Washington International
Law Journal, Vol. 29, No. 2, 7 April 2020, pp. 247–301.
117. ICC, Situation in Darfur, Sudan: In the Case of The Prosecutor v. Omar Hassan Ahmad Al Bashir –
The African Union’s Submission in the “Hashemite Kingdom of Jordan’s Appeal Against the ‘Decision
under Article 87(7) of the Rome Statute on the Non-Compliance by Jordan with the Request by the Court
for the Arrest and Surrender [of] Omar Al-Bashir”, Appeals Chamber, No. ICC-02/05-01/09 OA2,
13 July 2018.
118. ICC, Situation in Darfur, Sudan: In the Case of The Prosecutor v. Omar Hassan Ahmad Al-Bashir –
Judgment in the Jordan Referral re Al-Bashir Appeal, No. ICC-02/05-01/09 OA2, 6 May 2019.
119. Article 98(2) of the Rome Statute, Cooperation with respect to waiver of immunity and consent to
surrender, states:
2. The Court may not proceed with a request for surrender which would require the
requested State to act inconsistently with its obligations under international agreements
pursuant to which the consent of a sending State is required to surrender a person of
that State to the Court, unless the Court can first obtain the cooperation of the sending
State for the giving of consent for the surrender.
See ICC, Rome Statute of the International Criminal Court, art. 98(2).
120. Megan A. Fairlie, “The United States and the International Criminal Court Post-Bush: A Beautiful Courtship
but an Unlikely Marriage,” Berkeley Journal of International Law, Vol. 29, No. 2, 2011, p. 529; and
Vijay Padmanabhan, Council on Foreign Relations “From Rome to Kampala: The U.S. Approach to the
2010 International Criminal Court Review Conference,” Council Special Report No. 55, April 2010.
121. U.S., Alexis Arieff et al., International Criminal Court Cases in Africa: Status and Policy Issues, Report,
Congressional Research Service, 22 July 2011, p. 4; and International Bar Association, Balancing Rights:
The International Criminal Court at a Procedural Crossroads, May 2008.
122. When the UN Security Council referred the situation in Darfur to the ICC in 2005, Alegria, Brazil, China
and the U.S. abstained from voting. See UN Security Council, Security Council refers situation in Darfur,
Sudan, to Prosecutor of International Criminal Court, News release, 31 March 2005.
123. U.S., Department of State, Office of Global Criminal Justice, War Crimes Rewards Program.
124. ICC, State of Palestine; and ICC, Afghanistan.
125. Jennifer Hansler, “Pompeo slams International Criminal Court decision to authorize Afghanistan war crimes
investigation,” CNN, 5 March 2020; and Elizabeth Evenson, “US Official Threatens International Criminal
Court – Again,” Human Rights Watch, 22 May 2020.
126. “US revokes visa of International Criminal Court prosecutor,” BBC News, 5 April 2019.
127. U.S., Federal Register, “Executive Order 13928 of June 11, 2020: Blocking Property of Certain Persons
Associated With the International Criminal Court,” Presidential Document, 15 June 2020.
128. U.S., Department of the Treasury, Blocking Property of Certain Persons Associated with the International
Criminal Court Designations, 2 September 2020.
129. U.S., Department of the Treasury, Termination of Emergency With Respect to the International Criminal
Court, 5 April 2021.

27
THE INTERNATIONAL CRIMINAL COURT: HISTORY AND ROLE

130. U.S., Department of State, Ending Sanctions and Visa Restrictions against Personnel of the International
Criminal Court, News release, 2 April 2021.
131. ICC, Judge Chile Eboe-Osuji, President of the ICC, Remarks at Solemn Hearing in Commemoration of
the 20th Anniversary of the Adoption of the Rome Statute of the International Criminal Court, 17 July 2018.

28
 APPENDIX – OVERVIEW OF ALL INTERNATIONAL
CRIMINAL COURT CASES

Situation Case Name Defendant Charges Current State Status

Sudan (Darfur) Abd-Al-Rahman Ali Muhammad Ali Abd-Al-Rahman War crimes and crimes Trial ongoing Ongoing
against humanity
Sudan (Darfur) Abu Garda Bahar Idriss Abu Garda War crimes Pre-Trial Chamber Closed
declined to
confirm charges
Sudan (Darfur) Al Bashir Omar Hassan Ahmad Al Bashir War crimes, crimes Accused not Ongoing
against humanity, in custody
genocide
Mali Al Hassan Al-Hassan Ag Abdoul Aziz War crimes and crimes Trial ongoing Ongoing
against humanity
Mali Al Mahdi Ahmad Al Faqi Al Mahdi War crimes Found guilty, Closed
sentenced to
nine years
Libya Al-Werfalli Mahmoud Mustafa Busyf Al-Werfalli War crimes Accused deceased Closed
Sudan (Darfur) Banda Saleh Mohammed Jerbo Jamus War crimes Accused deceased Closed
Sudan (Darfur) Banda Abdallah Banda Abakaer Nourain War crimes Accused not Ongoing
in custody
Kenya Barasa Walter Barasa Witness tampering Accused not Ongoing
in custody
Central African Bemba Jean-Pierre Bemba Gombo War crimes and crimes Acquitted on appeal Closed
Republic (CAR) I against humanity
CAR I Bemba et al. Jean-Pierre Bemba Gombo Obstruction of justice Found guilty, Closed
sentenced to
one year
CAR I Bemba et al. Narcisse Arido Obstruction of justice Found guilty, Closed
sentenced to
11 months
CAR I Bemba et al. Jean-Jacques Mangenda Kabongo Obstruction of justice Found guilty, Closed
sentenced to
two years
CAR I Bemba et al. Aimé Kilolo Musamba Obstruction of justice Found guilty, Closed
sentenced to
two years and
six months
CAR I Bemba et al. Fidèle Babala Wandu Obstruction of justice Found guilty, Closed
sentenced to
six months
Kenya Bett Philip Kipkoech Bett Obstruction of justice Accused not Ongoing
in custody
Libya Gaddafi Muammar Mohammed Crimes Accused deceased Closed
Abu Minyar Gaddafi against humanity

i
 THE INTERNATIONAL CRIMINAL COURT: HISTORY AND ROLE

Situation Case Name Defendant Charges Current State Status

Libya Gaddafi Saif Al-Islam Gaddafi Crimes Accused not Ongoing
against humanity in custody
Libya Gaddafi Abdullah Al-Senussi Crimes Pre-Trial Chamber Closed
against humanity ruled case
inadmissible
Côte d’Ivoire Gbagbo and Laurent Gbagbo Crimes Acquitted Closed
Blé Goudé against humanity
Côte d’Ivoire Gbagbo and Charles Blé Goudé Crimes Acquitted Closed
Blé Goudé against humanity
Kenya Gicheru Paul Gicheru Obstruction of justice Accused deceased Closed
Sudan (Darfur) Harun Ahmad Muhammad Harun War crimes and crimes Accused not Ongoing
against humanity in custody
Sudan (Darfur) Hussein Abdel Raheem Muhammad Hussein War crimes and crimes Accused not Ongoing
against humanity in custody
Democratic Katanga Germain Katanga War crimes and crimes Found guilty, Closed
Republic of the against humanity sentenced to
Congo (DRC) 12 years
Kenya Kenyatta Uhuru Muigai Kenyatta Crimes Charges withdrawn Closed
against humanity
Kenya Kenyatta Francis Kirimi Muthaura Crimes Charges withdrawn Closed
against humanity
Kenya Kenyatta Mohammed Hussein Ali Crimes Pre-Trial Chamber Closed
against humanity declined to
confirm charges
Libya Khaled Al-Tuhamy Mohamed Khaled War crimes and crimes Accused deceased Closed
against humanity
Uganda Kony et al. Raska Lukwiya War crimes and crimes Accused deceased Closed
against humanity
Uganda Kony et al. Okot Odhiambo War crimes and crimes Accused deceased Closed
against humanity
Uganda Kony et al. Joseph Kony War crimes and crimes Accused not Ongoing
against humanity in custody
Uganda Kony et al. Vincent Otti War crimes and crimes Accused not Ongoing
against humanity in custody
DRC Lubanga Thomas Lubanga Dyilo War crimes Found guilty, Closed
sentenced to
14 years
Ukraine* Lvova-Belova Maria Alekseyevna Lvova-Belova War crimes Accused not Ongoing
in custody
DRC Mbarushimana Callixte Mbarushimana War crimes and crimes Pre-Trial Chamber Closed
against humanity declined to
confirm charges
CAR II Mokom Maxime Jeoffroy Eli Mokom War crimes and crimes Awaiting confirmation Ongoing
Gawaka against humanity of charges hearing
DRC Mudacumura Sylvestre Mudacumura War crimes Accused not Ongoing
in custody

ii
 THE INTERNATIONAL CRIMINAL COURT: HISTORY AND ROLE

Situation Case Name Defendant Charges Current State Status

DRC Ngudjolo Chui Mathieu Ngudjolo Chui War crimes and crimes Acquitted Closed
against humanity
DRC Ntaganda Bosco Ntaganda War crimes and crimes Found guilty, Closed
against humanity sentenced to
30 years
Uganda Ongwen Dominic Ongwen War crimes and crimes Found guilty, Closed
against humanity sentenced to 25
years.
Ukraine* Putin Vladimir Vladimirovich Putin War crimes Accused not Ongoing
in custody
Kenya Ruto and Sang Henry Kiprono Kosgey Crimes Pre-Trial Chamber Closed
against humanity declined to
confirm charges
Kenya Ruto and Sang William Samoei Ruto Crimes Trial Chamber Closed
against humanity terminated case
for lack of evidence
Kenya Ruto and Sang Joshua Arap Sang Crimes Trial Chamber Closed
against humanity terminated case
for lack of evidence
CAR II Said Mahamat Said Abdel Kani War crimes and crimes Trial ongoing Ongoing
against humanity
Côte d’Ivoire Simone Gbagbo Simone Gbagbo Crimes Charges vacated Closed
against humanity
CAR II Yekatom and Alfred Yekatom War crimes and crimes Trial ongoing Ongoing
Ngaïssona against humanity
CAR II Yekatom and Patrice-Edouard Ngaïssona War crimes and crimes Trial ongoing Ongoing
Ngaïssona against humanity
Source: Table prepared by the Library of Parliament using information obtained from International Criminal Court (ICC), 31 Cases; and
ICC, Situation in Ukraine: ICC judges issue arrest warrants against Vladimir Vladimirovich Putin and Maria Alekseyevna Lvova-
Belova, News release, 17 March 2023.

* Case involves arrest warrants issued by the ICC against Vladimir Vladimirovich
Putin and Maria Alekseyevna Lvova-Belova, as announced by the court in March
2023. At the time of writing, it is unknown whether the two accused will be tried
together as a single case or separately.

iii