International Criminal Courts

The court will have subject matter jurisdiction under Article 5 over four categories of crimes under international law that are committed after entry into force of the Statute: genocide, crimes against humanity, war crimes, and, once it has been defined and a procedure for addressing it agreed, the crime of aggression. Genocide, a term coined in 1944 by Rafael Lempkin, is defined in Article 6 exactly as in Article II of the 1948 Convention for the Prevention and Punishment of the Crime of Genocide.

The concept of crimes against humanity dates to the middle of the nineteenth century. The 1919 Paris Peace Conference investigated such crimes, but U.S. and Japanese objections prevented any prosecutions. However, perpetrators of such crimes were prosecuted in the Nuremberg, Tokyo, Yugoslavia, and Rwanda Tribunals. Crimes against humanity listed in Article 7(1) of the Statute (and further defined in Article 7(2)), include murder, extermination, enslavement, deportation or forcible transfer of population, imprisonment, torture, rape and other crimes of sexual violence, persecution in connection with any other prohibited act, enforced disappearance of persons, apartheid, and other inhumane acts. However, such conduct amounts to a crime against humanity only when it is "committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack." Such an attack, as defined in Article 7(2), "means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack." Despite the misleading term attack, and in contrast to the Nuremberg Charter and the Statute of the Yugoslavia Tribunal, which limited the scope of jurisdiction over crimes against humanity to those linked to armed conflict, the Statute requires no link between crimes against humanity and armed conflict or, indeed, any military action, and the attack could include legislation.

The court will have jurisdiction under Article 8 (2) (a) and (b) over grave breaches of the 1949 Geneva Conventions and other serious violations of international humanitarian law in international armed conflict, including violations of the Hague Convention IV of 1907 and its Regulations and some violations of Protocol I of the Geneva Conventions. The court also will have jurisdiction under Article 8 (2) (c) to (f ) and (3) over violations of international humanitarian law in non-international armed conflict, the most common form of armed conflict today. These include violations of common Article 3 of the 1949 Geneva Conventions and Protocol II to those treaties, as well as certain conduct that would be a violation if it occurred during international armed conflict. These provisions confirm the rapid evolution of international law in the 1990s, as evidenced by the decision of the Appeals Chamber of the Yugoslavia Tribunal in the Tadić case, concluding that serious violations of international law in internal armed conflicts entailed individual criminal responsibility; and the Rwanda Statute, which expressly gave the tribunal jurisdiction over serious violations of common Article 3 and Protocol II.

Although Articles 6, 7, and 8 simply define the court's jurisdiction, the United States has expressly recognized that they, as well as the draft Elements of Crimes, largely reflect the state of customary international law today.

Among the most important aspects of the definitions in the Statute are Article 7 (1) (g) and (2) (f ), defining the court's jurisdiction over rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity as crimes against humanity, and Article 8 (2) (b) (xxii) and (e) (vi), defining the Court's jurisdiction over analogous war crimes in international and noninternational armed conflict. Inclusion of these crimes was foreshadowed in the 1996 Draft Code of Crimes and is a recognition that such crimes are committed on a large scale throughout the world. It is also a significant advance over the 1945 Allied Control Council Law No. 10 governing trials of Nazis in Germany and the Yugoslavia and Rwanda Statutes, which expressly list rape, but not other crimes of sexual violence, and the Nuremberg and Tokyo Charters, which did not list any crimes of sexual violence.

The court will not have jurisdiction over states for international crimes, a controversial concept rejected by the ILC in 2000, or over crimes committed by legal entities, such as corporations, political parties, or trade unions. Instead, its jurisdiction will limited to crimes committed by individuals over the age of eighteen (Article 26). Individuals may be held criminally responsible under Article 25, not only if they commit or attempt to commit the crime, but also if they order, solicit, or induce others to do so; aid, abet, or otherwise assist others; or assist a group of persons acting with a common purpose. They may also beheld individually criminally responsible pursuant to Article 25 if they directly and publicly incite genocide. Except as otherwise provided in the Statute, Elements of Crimes, or international law, a person may be held criminally responsible only if the material elements of the crime were committed with intent and knowledge (Article 30), thus ruling out a negligence standard for most crimes. The Court will have jurisdiction over persons regardless of government position, including heads of state (Article 27). Military commanders can be found criminally responsible under Article 28 for crimes of subordinates under their effective control when they knew or should have known that the subordinates were committing or about to commit crimes and failed to take all necessary and reasonable measures within their power to prevent or repress the crimes or to submit the mailer to a prosecutor; civilian superiors are criminally responsible under a similar, but somewhat less strict, standard. None of the crimes are subject to a statute of limitations (Article 29).

Superior orders are largely ruled out as a defense under Article 33, and the situations in which such orders would be a defense before the court are extremely narrow. Under certain limited circumstances, criminal responsibility may be excluded under Article 31 because of a mental disease or defect, involuntary intoxication, self-defense, defense of others or certain property, or duress. Mistake of fact is a ground for excluding criminal responsibility under Article 32 only if it negates the mental element; mistake of law about whether a particular type of conduct is a crime is not a ground for excluding criminal responsibility, but mistake of law may be such a ground if it negates the mental element required.

The court will have jurisdiction under Article 12 over crimes committed on the territory of any state party to the Statute or by a national of any state party, regardless where the crime occurred. It will also have jurisdiction over crimes in a situation referred by a non-state party that has made a special declaration. In addition, the court can exercise jurisdiction over crimes committed anywhere in a situation that breaches or threatens international peace and security that has been referred by the Security Council (see below).

The cornerstone of the Statute is the principle of complementarity, as identified in the Preamble, Article 1, and Article 17. This principle has two parts. First, as the Preamble makes clear, states have the primary duty to bring those responsible for these crimes to justice. In the Preamble, the states parties affirm that "the most serious crimes of concern to the international community must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation," determine "to put an end to impunity," and recall that "it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes." Second, as Article 17 provides, the court will act only when states are unwilling and unable genuinely to investigate and prosecute suspects themselves. In such cases, and when trial is precluded under the principle of ne bis in idem (double jeopardy) as defined in Article 20 or the case is not of sufficient gravity, the court is required to determine that the case is inadmissible. In determining whether a state is unwilling, the court shall consider whether the national proceedings were or are being undertaken or the national decision (which would include amnesties, pardons, or similar measures of impunity) was made to shield the person concerned, there was unjustified delay, the proceedings were not independent or impartial, or they were conducted in a manner inconsistent with bringing the person to justice. In determining inability in a particular case, the court shall consider whether, "due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceeding." Article 17 does not, however, preclude the court from examining other factors.

There are three ways an investigation can be opened. Article 13 (b) will make ad hoc international criminal tribunals for crimes committed after entry into force of the Statute largely unnecessary. It provides that the Court may exercise jurisdiction over a genocide, crimes against humanity, war crimes, and the crime of aggression if the Security Council, acting pursuant to Chapter VII of the UN Charter, has referred a situation to the prosecutor where such crimes appear to have been committed. Article 13 (a) provides that the court may exercise its jurisdiction over such a crime when a state party has referred a situation to the prosecutor pursuant to Article 14 in which such crimes may have occurred. Article 13 (e) gives the court jurisdiction over a crime when the prosecutor has initiated an investigation pursuant to Article 15. That article authorizes the prosecutor to initiate an investigation based on information from any source, including victims and their families, intergovernmental organizations, and nongovernmental organizations, if authorized to do so by the Pre-Trial Chamber. Regardless which method is used, the prosecutor can be subjected to a lengthy series of admissibility challenges by states (whether the states are parties to the Statute or not) under Article 18, based on the complementarity criteria in Article 17, and admissibility and jurisdictional challenges under Article 19 and judicial scrutiny by the Pre-Trial Chamber before the prosecutor can open or continue an investigation.