Anthony Aust. Handbook of International Law

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Rwanda and by Rwandan citizens in neighbouring states. Its powers, composition and procedure are

otherwise closely modelled on those of the ICTY. So far over twenty persons have been convicted,

with some appeals pending.

Sierra Leone Special Court

The Court was established by a treaty between Sierra Leone and the United Nations of 16 January

2002,

although that does not make it a UN body. The Court, located in Freetown, Sierra Leone,

began trials in 2004. It has jurisdiction over persons accused of bearing the greatest responsibility for

serious offences committed since 30 November 1996 and contrary to common Article 3 of the

Geneva Conventions and Additional Protocol 1977, over other serious violations of international

humanitarian law (such as intentionally directing attacks against civilians and conscripting children

under fifteen), and over certain serious crimes under Sierra Leonean law. In most other respects, the

Statute of the Court follows that of the ICTR.

The main role of the United Nations is for the Secretary-General to appoint, upon nomination by

states (in particular, those of the Economic Commission for West Africa (ECOWAS) and the

Commonwealth) two of the three judges of the Trial Chamber and three of the five judges of the

Appeals Chamber. He also appoints the Prosecutor after consultation with the Government of Sierra

Leone. It was intended that the Court should be financed by voluntary contributions made to a trust

fund held by the Secretary-General, but funding for the third year of the Court’s operations was

provided by a UN subvention.

By comparison with the ICTY and ICTR, the number of indictments will be much more limited;

in practice, there is likely to be indictments against a maximum of twenty persons. It is intended that

the Court should limit its indictments to those persons bearing the greatest responsibility for the

crimes listed above. The Court will also have a much shorter life than the ICTY or the ICTR, and is

expected to complete most of its work in three years.

52. See Romano, Nollkaemper and Kleffner (eds.), Internationalized Criminal Courts, Oxford, 2004,

which also covers courts in Timor Leste, Kosovo and Cambodia.

53. See www.sc-sl.org. The text of the treaty is also in S/2002/246 and 2178 UNTS 138 (No. 38342). See

R. Cryer, ‘A “Special Court” for Sierra Leone’ (2001) ICLQ 435.

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International Criminal Court (ICC)

R. Lee (ed.), The International Criminal Court: The Making of the Rome Statute: Issues, Negotiations,

Results, The Hague, 1999

W. Schabas, An Introduction to the International Criminal Court, 2nd edn, Cambridge, 2004 (the

appendices include the ICC Statute, the Elements of Crimes and the Rules of Procedure and Evidence)

www.un.org/law/icc

Unlike the ICTY and the ICTR, the ICC was created by treaty, the Rome Statute, which was adopted

at a UN conference on 17 July 1998, and which entered into force on 1 July 2002.

It now has

nearly 100 parties. It is the first permanent and universal international criminal court. Its main

limitation is in the number and importance of the states that are not yet parties, such as China, Egypt,

India, Indonesia, Iran, Japan, Pakistan, Russia and the United States.

The seat of the ICC is at The Hague, although it can sit elsewhere. It has eighteen judges elected

by the parties to serve nine-year, non-renewable

terms. All judges must have practical experience

of either criminal law and procedure or international humanitarian law or human rights law. The ICC

sits in three divisions: Appeals (five judges), Trial (three judges) and Pre-Trial (one to three judges).

The Office of the Prosecutor is a separate organ. The Prosecutor must have extensive practical

experience of the prosecution or trial of criminal cases, and is elected by the parties for a nine-year,

non-renewable term. The working languages are English and French.

Jurisdiction

It must not be thought that in future all major crimes of international concern will be prosecuted in

the ICC. Even for most crimes over which it would have jurisdiction it will not actually exercise that

jurisdiction. Because of the ‘complementarity’ rule (see below), the vast majority of crimes that are

within the jurisdiction of the ICC will still be dealt with by domestic criminal courts. Nevertheless,

the ICC will be explained in some detail since it is of great legal and political importance. The chief

value of the ICC is that, when a domestic legal system cannot or will not

54. 2187 UNTS 91 (No. 38544); ILM (1998) 998; UKTS (2002) 35.

55. Except for those of the initial judges who serve only three-year terms (Article 36(9)).

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deal with an international crime, the ICC may be available to deal with it; there should be no need

for the UN Security Council to set up an ad hoc international criminal tribunal like the ICTY or the

ICTR.

The ICC does not have either general criminal jurisdiction or jurisdiction over terrorism or drug

trafficking. For the moment, it can exercise jurisdiction only with respect to genocide, crimes against

humanity and war crimes. The crimes in the first three categories are exhaustively defined in

Articles 6, 7 and 8 of the Statute, and elaborated in the Elements of Crimes.

The ICC will not be

able to exercise jurisdiction over the crime of aggression until the Statute has been amended to

define that crime and the conditions under which the ICC may exercise jurisdiction over it (Article

5(2)).

The UN General Assembly adopted its own definition of aggression in 1974,

but this is

not in itself suitable for the purpose of a criminal prosecution and there is also disagreement about

whether Article 39 of the UN Charter, which gives to the Security Council the – essentially political

– responsibility of determining whether aggression has occurred, requires that the Council should act

as a filter for the exercise of jurisdiction by the ICC.

Under Article 13, the jurisdiction of the ICC can be invoked by:

a party referring an alleged crime to the Prosecutor;1.

the UN Security Council, acting under Chapter of the UN Charter, referring an alleged crime to

the Prosecutor;

the Prosecutor initiating an investigation into an alleged crime.3.

But under (a) and (c), the ICC can exercise jurisdiction only if (1) the state on whose territory the

conduct occurred (or if the crime was committed on board a vessel or aircraft, the state of

registration) or (2) the state of nationality of the accused person, is a party to the Statute. But if

neither state is a party, either can accept the jurisdiction of the ICC, voluntarily and ad hoc (Article

12).

Thus for the ICC to have jurisdiction the accused does not have to be a national of a party if the

crime was committed in the territory of a party (or on board one of its registered ships or aircraft), or

was referred to the ICC by the Security Council.

56. See K. Dörmann, Elements of War Crimes under the Rome Statute of the ICC, Cambridge, 2003.

57. No amendment can be proposed until 1 July 2009 (Article 121(1)).

58. UNGA Res. 3314 ( ); ILM (1975) 588, text at ILM (1974) 710.

59. See p. 214 above.

60. This was done for the first time in UNSC Res. 1593 (2005), which referred the situation in Darfur

(Sudan) to the Prosecutor, who is now investigating it.

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The exercise of jurisdiction by the ICC, including the power of the Prosecutor to invoke the ICC’s

jurisdiction, is further restricted by the important so-called complementarity rule in Article 17, under

which the ICC must not exercise jurisdiction if it determines that:

the case is being investigated or prosecuted by a state that has jurisdiction over the crime,

unless ‘the state is unwilling or unable genuinely to carry out the investigation or prosecution’;

the case has been investigated by a state that has jurisdiction over the crime and it has decided

not to prosecute, unless this was because of the ‘unwillingness or inability of the state

genuinely to prosecute’;

the accused has already been properly tried; or3.

the case is not of ‘sufficient gravity’ to justify action by the ICC.4.

The unwillingness of a state to prosecute may be indicated where there is evidence that it is

shielding the accused, where there is an unjustified delay in bringing the accused to justice which is

inconsistent with an intention to bring the accused to justice, or proceedings were not conducted

independently or impartially. It may therefore be desirable for parties to revise their domestic

criminal laws, procedures and practices so that they will be able themselves fully to deal with the

crimes.

There are further limitations on ICC jurisdiction.

In respect of any party, the crime must have been committed after the entry into force of the

Statute for that party (Article 11).

No person can be tried by the ICC and a national court for the same crime (ne bis in idem)

(Article 20).

No person can be tried for an offence committed before the entry into force of the Statute

(Article 24).

The accused must have been eighteen or over when the alleged crime was committed (Article

26).

Surrender of accused persons

A party to the ICC Statute is required to arrest and surrender to the ICC a person for whom a warrant

of arrest has been issued by the Pre-Trial Chamber, unless the case is inadmissible on the basis of

double jeopardy (Arts 58 and 89). A party cannot refuse to surrender its own

61. See Schabas, An Introduction to the International Criminal Court, 2nd edn, Cambridge, 2004, pp.

132–6.

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nationals even where its law prohibits their extradition, as is made clear by Article 102.

Personal responsibility

Article 25 sets out rules on the personal responsibility of the individual, including accessories,

conspirators and those who order, solicit or induce a crime. Heads of state or government,

parliamentarians and government officials, past or present, are all within the jurisdiction of the ICC

(Article 27). This means that on a request for surrender to the ICC such a person cannot plead

immunity, although a party is not obliged to surrender a national of a third state if he enjoys state or

diplomatic immunity in the territory of the party (Article 98).

United States

The United States is opposed to the ICC and has no present intention of becoming a party. Its

concerns are particularly addressed to the fact that the ICC can take jurisdiction in certain

circumstances even over the nationals of states that are not parties. The Security Council has adopted

two US-sponsored (annual) resolutions (1422 (2002) and 1487 (2003)) which requested, purportedly

consistent with Article 16 of the ICC Statute, that, if a case were to arise involving the official acts

of officials or personnel of a state contributing to an operation established or authorised by the UN,

the ICC should not proceed with any investigation or prosecution of such persons for twelve months,

unless the Council were to decide otherwise; and that the Council intended to renew the request

indefinitely. There were serious doubts whether Article 16 was ever intended to be used in this way,

since it appears to envisage only specific cases where the Security Council has determined that there

was a threat to international peace and security, not blanket exclusion.

But in June 2004 there

were not enough votes in the Council for renewing the resolution.

The United States has also concluded over ninety bilateral treaties (about thirty-five with parties

to the ICC Statute) under which the other party agrees not to surrender US military personnel,

government officials,

62. Ibid., pp. 81 and 114–15.

63. See p. 214 above, and Lee, (ed.), The International Criminal Court: The Making of the Rome Statute:

Issues, Negotiations, Results, The Hague, 1999, pp. 149–52 and Schabas, An Introduction to the

International Criminal Court, 2nd edn, Cambridge, 2004, pp. 82–5.

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or civilian employees or contractors, to the ICC.

Such treaties may not be compatible with the ICC

Statute since the purpose of Article 98(2), under which the treaties purport to be made, was to

preserve status-of-forces and similar agreements,

not to shield all nationals of non-parties from

ICC jurisdiction.

To meet US concerns, UNSC Res. 1593 (2005) excepts from ICC jurisdiction current or former

officials or personnel of a state which contributes to a UN mission but which is not a party to the

ICC Statute.

Procedure

Article 21 requires the ICC to apply the following law: first, the Statute, the Elements of Crimes and

the Rules of Procedure and Evidence; secondly, treaties and principles and rules of international law,

including the established principles of the law of armed conflict; and, thirdly, general principles of

law derived from national laws. The application and interpretation of law must be consistent with

internationally recognised human rights. Even if a person before the ICC is accused of a crime that is

subject to a statute of limitations in force in the place where the crime was committed or in his state

of nationality, the ICC is not bound by any such limitation (Article 29).

The procedure of the ICC is influenced by that of the ICTY and the ICTR, but draws less on the

common law, consisting as it does of principles, rules and procedures drawn from both the civil and

common law legal systems. The trial procedure is rather more adversarial than in civil systems, but

the judges have greater powers of intervention and control of procedure, in particular over

investigations, than in common law systems.

If, on the basis of the information he has received, the Prosecutor considers there is a reasonable

basis to proceed with the investigation, he must first seek the authorisation of the Pre-Trial Chamber

(Articles 15 and 53). An effective investigation naturally depends upon the co-operation of states,

and usually one in particular. In the case of states that are parties, Articles 86–88 and 93–101 have

detailed provisions requiring their co-operation in terms similar to those in treaties on mutual legal

assistance.

If, as a result of his investigations, the Prosecutor determines

64. For example, the US–Uzbekistan Agreement of 18 September 2002, ILM (2003) 39. See also the EU

guidelines, ILM (2003) 241, and Schabas, An Introduction to the International Criminal Court, 2nd edn,

Cambridge, 2004, p. 22.

65. See p. 175 above.

66. See p. 263 above.

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that a suspect should be arrested, he may apply to the Pre-Trial Chamber for a warrant of arrest

(Article 58), and the party in whose territory the person is present is under an obligation to surrender

him (Article 89). Since this procedure is not extradition, the request for surrender cannot be refused

on the ground that the person is a national of the requested state (Article 102).

Article 67, based on Article 14(3) of the International Covenant on Civil and Political Rights

1966,

accords extensive rights to an accused. There are of course provisions for appeal against

conviction and sentence (Articles 81–85). The ICC can impose a sentence of imprisonment for a

specified number of years up to thirty, or life imprisonment. Once two-thirds of the sentence has

been served (or twenty-five years in the case of life imprisonment), and not before, the ICC must

review the sentence and may reduce it. As the ICC has no territory and no prison, sentences of

imprisonment are served in the territory of a state (which need not be a party) designated by the ICC

from those states that have indicated to the ICC their willingness to accept such prisoners. If no state

is designated, the prisoner will be held in a Dutch prison.

67. See p. 264 above on extradition.

68. See p. 236 above.