International Criminal Courts and Tribunals

Author: Raghavi Viswanath

Required knowledge: Sources of international law; Jurisdiction; Law of Armed Conflict

Learning objectives: to understand the foundation and purpose of international criminal justice.

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A. Introduction edit

This chapter introduces readers to a range of contemporary international criminal courts and tribunals, the political contexts in which they were set up, and the workings of such tribunals. It is in these sites that the substantive principles of international criminal law are applied on a case by case basis. The objective is to closely study the infrastructures and outputs of existing international criminal tribunals.

First, the chapter examines the International Criminal Court (ICC), a permanent and universal international criminal tribunal based in The Hague, arguably the most prominent international tribunal for criminal responsibility. It studies the procedural and substantive features of the ICC, as well as its defining contributions to international criminal law. The chapter then spotlights selected so-called hybrid criminal tribunals, the circumstances and motivations underscoring their establishment, the landmark jurisprudence of such tribunals, and their relationship to the ICC.

B. The International Criminal Court edit

The International Criminal Court is distinct for being the first permanent tribunal that applies international criminal law with jurisdiction in over 123 States. The idea of a permanent international criminal tribunal was mooted much before even the Nuremberg Tribunal was set up. In 1872, Gustav Moynier from the International Committee of the Red Cross articulated the concern that national judges would find it difficult to be impartial when prosecuting humanitarian law violations orchestrated by their own State.[2] This apprehension developed into a request for a standing court. Following a study by the ILC, the UN General Assembly even prepared a draft code for such a court.[3] This effort lost steam during the negotiations of the Genocide Convention. The demand was later picked up in 1989. The Prime Minister of Trinidad and Tobago approached the International Law Commission (ILC) to set up a court that would be able to prosecute drug crimes. The ILC, paying heed to the request, drafted a statute by 1994 and a separate conference was eventually held in Rome to deliberate the draft.[4] The deliberations saw multiple States participating directly and contributions from the sidelines from NGOs, deliberations that were hailed as a gold standard of multilateralism. However, the jurisdiction of the Court (particularly war crimes) generated great controversy. Yet, the Court received the approval of 120 out of the 148 participating States.[5] The Statute was adopted in 1998 and came into force on 1 July 2002 after ratifications by 60 States.

1.1. Composition and Organisation edit

The Court is composed of 4 organs – the Presidency, the Chambers, Office of the Prosecutor, the Registry (under article 34 of the Statute).

a. Presidency

The Presidency of the ICC oversees the constitution of the judicial chambers of the ICC. It is also the organ that liaises with States by concluding cooperation agreements and organizing outreach activities.

b. Chambers

The three Chambers – Pre-Trial, Trial, and Appeals - are responsible for various stages of the proceedings. Preliminarily, the inclusion of the Pre-Trial Chamber was emblematic of the confluence (arguably, also compromise) of common law and civil law systems, whose varying features the Court has drawn from. The Pre-Trial Chamber is tasked with determining whether the Prosecutor’s request for the opening of an investigation under Article 15 should be granted, and also for reviewing the Prosecutor’s decision not to open an investigation.[6] The Pre-Trial Chamber is also in charge of confirming the charges pinned by the Prosecutor. The Trial Chamber’s jurisdiction is triggered after this stage is crossed. The Trial Chamber conducts the trial and, where required, awards the sentence. Appeals against the decisions of both the Pre-Trial Chamber and the Trial Chamber are heard and decided by the Appeals Chamber.[7]

At any point of time, the Chambers are constituted by a total of 18 judges, who are elected for nine-year terms by signatories of the Rome Statute. Article 36(3) of the Rome Statute prescribes the qualification criteria for the nomination and appointment of judges. Notably, it requires nominated judges to either have relevant experience in criminal law (as a judge or a prosecutor), or in international law generally.

These conditions have come under fire on many occasions and for multiple reasons. Preliminarily, the Statute appears to equate diplomatic experience to judicial experience. This came under scrutiny following the requested removal of former Judge Saiga during the Katanga trial. Despite having served as an ambassador, Judge Saiga did not have the qualifications to be appointed as a criminal division judge in her home state, Japan. In fact, 15 out of the 48 judges who have served on the ICC bench have previously held some form of domestic diplomatic position. Similarly, amongst the judges currently serving the Court, there are judges who have many years of experience in legal academia, but not in litigation or the judiciary.

The issue of geographical representation has also been contentious. Article 36(8)(a) calls for equitable geographical representation determined through regional groupings (being the African States, Asia-Pacific States, Eastern European States, Latin American and Caribbean states, and Western Europe and Others Group) with only one judge of the same nationality eligible to sit at one time. However, issues of dual nationality distort this requirement. The Raising the Bar report identifies that minimum voting requirements in practice reflects “an alarming concentration of the ICC’s judiciary in only a small handful of states, as well as a decline in the engagement of States Parties in the judicial selection process over time.”[8]

c. Office of the Prosecutor

The Office of the Prosecutor has been envisaged as an independent and impartial investigating authority, drawing on the Yugoslavia and Rwanda models.[9] Under Article 15, the Prosecutor is empowered to initiate investigations in situations, based on information received from states, organs of the UN, intergovernmental and nongovernmental organisations or other reliable sources. Before doing this, the Prosecutor must obtain approval from the Pre-Trial Chamber. Under Article 15, when the Prosecutor decides not to open such an investigation, the Pre-Trial Chamber may order the Prosecutor to reconsider their decision.

d. Registry

The Registry helps the Court to conduct fair, impartial and public trials. The core function of the Registry is to provide administrative and operational support to the Chambers and the Office of the Prosecutor.

e. Trust Fund for Victims

The Fund, albeit independent from the Court, works in tandem with the Court’s outreach team with a specific focus on securing the physical, psychological, and emotional dignity of victims and their families (this is known as the assistance mandate of the Fund). The Fund also implements and follows up on the implementation of the Court’s material and symbolic reparations orders. This is typically done through the development of implementation plans. The Fund is sponsored in part by the ICC’s budget and in part through voluntary contributions. The monetary investment in the Fund generates increased stakes in the tangible success and effectiveness of the Fund’s assistance mandate.

f. Assembly of States Parties

The Assembly of States parties is an external and independent institution vested with administrative and legislative powers. The ASP, for instance, is responsible for deciding and revising the budget of the Court. The ASP is also the body that receives nominations for the Prosecutor positions and nominates said Prosecutor.[10]

1.2. Seat edit

The International Criminal Court is located in Scheveningen in The Hague. Until 2015, the Court was housed in temporary premises – those of the bank L’Arche. Following an architectural competition, the Court moved to its permanent premises in Scheveningen. The move was intended to symbolically reflect the Court’s permanence and its universalist missions.[11]

The selection of The Hague has faced great censure, given that it places significant distance between the Court and those it admittedly serves. Recently, the counsels for the defence in Bangladesh/Myanmar requested the ICC to move its seat within reasonable proximity of the affected populations.[12] The Court rejected the request, citing reasons of prematurity and immobility during the pandemic.[13] In this context, it is important to acknowledge that the statute of the Court does allow for the seat to be moved wherever deemed necessary. The new design of the Court has also been called out by critical scholars as not being encouraging for victims with its opaque setting, monochromatic colour scheme, less visible witness boxes – all of which impede the interests of reflexivity.[14]

1.3. Applicable law edit

Article 21 of the Rome Statute prescribes the sources of law that the ICC can apply. Not only is it the first time that the applicable law of an international criminal tribunal has been codified, but it is also the first codified effort to specify the hierarchy between the sources.[15] Earlier tribunals predominantly relied on custom and general principles as gap filling tools.[16] This invited severe criticism about it impugning the principle of legality and vesting unreasonable law-making authority on the Court. The most important sources are the Statute, the Court’s Rules of Procedure and Evidence, and the Elements of Crimes. If this fails to yield an effective solution, then the Court may consult general principles of international law and failing that, rules derived from national legislations and human rights. Article 21 was inserted with the motive of restricting the Court’s discretion and ensuring that the principle of legality (nullum crimen sine lege) is respected.[17] Naturally, it has been read and applied strictly. But elevating the legal status of the Statute and delimiting the Court’s sources could only be effected at the cost of epistemic exclusions. For one, the demand for Article 21 was backed and followed through mainly by the American delegation, for reasons of avoiding vagueness.[18] The construction of Article 21 that the Statute finally retained does not create any room for oral sources, customs, or indigenous legal orders. It also imposes Western epistemologies governing the formation of “treaties” and “international legal principles” on Global South peoples who forge relationships with the Court.[19] Substantively, Article 21 – as the Court’s own jurisprudence has demonstrated – has made it difficult for the Court to recognize the evolving nature of international criminal law and the victimhood triggered by crimes that the original Statute did not codify.[20]

Some have rightly noted that the Court seldom applies external law. This can be explained by the density of its internal legal instruments. But the Court does not shy in relying on external aids to interpret internal law.[21] Another aid that the Court typically resorts to is its own past jurisprudence. However, the Court’s jurisprudence, as is protocol in civil law systems, is not binding.[22] It is merely of persuasive value.

1.4. Jurisdiction edit

There are four bases for the Court’s jurisdiction: personal, territorial/nationality, subject-matter, and temporal.

In terms of ratione materiae, the Court is authorized to exercise jurisdiction over ‘the most serious crimes of international concern’: genocide, crimes against humanity, war crimes and aggression (Article 5(1)). These crimes largely correspond to the elements discussed above. In particular, Article 7 of the Rome Statute recognizes murder, extermination, enslavement, deportation, rape and sexual violence, apartheid, torture, enforced disappearance, imprisonment, persecution, and other inhumane acts as crimes against humanity. In 2022, the Court convicted Dominic Ongwen of crimes including forced marriage as an "other inhumane act" under Article 7 of the Statute. The crime of aggression has also been recently activated within the Court's jurisdiction. The list of crimes over which the Court has jurisdiction continues to be under contention. Notably, negotiations are underway about the potential inclusion of ecocide as a fifth crime in the Rome Statute.[23]

On ratione personae and tertii, the first condition is one of age. The Court can only try natural persons above the age of 18.[24] The second is that of territoriality. Article 12 of the Rome Statute confers territorial jurisdiction on the Court in cases where “conduct in question” was committed on the territory of a state party to the Statute or by a national of a state party. This link to territory was created – against the wishes of States like Germany and Korea  – to distinguish the ICC from a domestic court with universal jurisdiction and to wed the Court to its treaty character. The Court’s reading of territoriality has been at the centre of recent litigation, particularly concerning the Bangladesh/Myanmar situation.[25] In the former, the Prosecutor placed a proprio motu request for investigation over the crimes committed by the Tatmadaw forces against Rohingyas in Myanmar. The Pre-Trial Chamber of the Court authorized investigation. But a major roadblock was that Myanmar was not a State party to the Rome Statute. The Court read territoriality ‘objectively’, noting that the conduct was partly committed in Myanmar and partly in Bangladesh (a State that was party to the Statute).[26] This offered a route for the Court to exercise jurisdiction over the crimes.

The third condition is nationality. This is also prescribed by Article 12(2). Interestingly, the term nationality has not been defined in the Statute. The Court has implicitly imported the domestic understanding of nationality as the legal bond between the natural person and the sovereign State.[27] Importantly, the Court’s jurisdiction cannot be activated through passive nationality (when only victims bear a nationality link to State parties). Nationality under Article 12(2)(b) is limited to active nationality.[28]

The temporal starting point of the Court’s jurisdiction has been spelled out in Article 11. The provision notes that the Court’s jurisdiction is prospective and can be invoked only for crimes committed following the Statute’s coming into force on 1 July 2002.

Exceptionally, Article 12(3) allows non-State parties to file declarations accepting the Court’s jurisdiction on an ad hoc basis for crimes committed within their territories or by their nationals. This option – some argue – also offers the facility of circumventing the temporal limits of the Court’s jurisdiction. Palestine, for instance, has lodged an Article 12(3) declaration accepting the Court’s jurisdiction over crimes committed against its nationals prior to Palestine’s own accession of the Statute in 2015.[29]

1.5. The triggering mechanisms edit

There are three ways to trigger the jurisdiction of the Court. a referral by a State Party, a referral by the Security Council acting under Chapter VII of the Charter of the United Nations, and the institution of an investigation by the Prosecutor acting on her own initiative (Article 13).

The first mode is a proprio motu investigation by the Prosecution. To do this, the Prosecutor must obtain the approval of the Pre-Trial Chamber by showing how and why the selected situation meets the admissibility and jurisdiction requirements prescribed by the Statute. The Prosecutor must also obtain the consent of the States implicated.

The second mode is self-referral. The bulk of the cases that the Court has heard have been self-referrals by the States in which the crimes were committed. A recurring concern with self-referrals has been that States have fashioned it into a tool to pursue retributive prosecutions of rebel non-State actors to bolster the “legitimacy of its own military operations”.[30] Nouwen, and Werner have all shown how the States of Mali and Uganda self-selected certain crimes/criminals in their referrals and employed the rhetoric of self-referrals to exempt their own government forces from sanction.[31]

Article 13(b) of the Statute also offers a route for the Security Council to intervene and refer cases to the ICC. This allows the Court – a treaty-based creature modeled to exercise jurisdiction purely basis nationality and territoriality – to extend jurisdiction over crimes and accused persons even in non-State parties. This route has been invoked twice. In March 2005, the Security Council, exercising its powers under Chapter VII of the UN Charter and acting on the recommendations of the UN fact finding commission, referred the situation in Darfur to the ICC. The Council found that war crimes and crimes against humanity were being committed by the Government forces and the Janjaweed militia in Sudan. The Darfur situation generated a string of decisions – famously, the ICC’s jurisprudence on the immunity of Omar Al-Bashir. Later, in 2011, through Resolution 1970, the Council referred the situation in Libya to the Court.

The Council referral route raises important questions about the legitimacy of the Court. The ICC originally postured itself as a mechanism to rectify the failures of past international criminal tribunals. The deliberations in Rome reveal that the drafters were clear about avoiding accusations of Eurocentric exercise of judicial discretion. However, the Security Council referral in the Statute suffers from the same vices. The Security Council referral departs from the nationality and territoriality based jurisdictional framework that the ICC otherwise rests on. As Talita Dias argues, the Security Council referral is not conceived as an exceptional tool that merely triggers the Court’s jurisdiction, it goes so far as to prescribe the contents of the Court’s substantive jurisdiction, elevating the referral to the same binding status as the Statute itself.[32] This route of referral has faced much censure, primarily on account of its vulnerability to political misuse. Scholars argue that it offers a free pass to the permanent members to exercise “unilateral negative control” and exempt their own nationals from criminal responsibility for the same acts that they refer other individuals to the ICC for. The recent political clashes triggered by the Palestine and Afghanistan situations have shown that the Court still “reifies White supremacy” and “works to mask the core-periphery relations” that sustain economic and power inequalities.[33]

1.6. Admissibility edit

Article 17 of the Statute lays down the substantive conditions for the admissibility of a case before the ICC. Admissibility at the Court hinges on two aspects. The first is complementarity. The deliberations at the Rome conference of 1998 show that complementarity was the most decisive in soliciting the support of the now States parties to the Statute. Complementarity requires an assessment of a) whether the referring State/host State is unwilling or unable to prosecute the case. The ICC, as a court of last resort, can be approached only once it is settled that the national judicial system cannot help. The Defence – in order to challenge admissibility – must demonstrate that the national jurisdiction is investigating and taking genuine steps to interrogate witnesses, collecting evidence, etc.[34] The second part of the admissibility test relates to the analysis of the “gravity threshold”, in order to determine whether the case is of sufficient gravity to justify further action by the Court. The gravity threshold has been repeatedly debated by litigants. In the Al Hassan case, the Appeals Chamber listed some criteria that are relevant to assessments of gravity (while adding the caveat that the assessment necessarily varies from case to case). These criteria included the number of victims, qualitative factors such as the nature, scale, manner of commission of the crimes including human rights violated as a result, the impact on victims, and sentencing factors.[35]

1.7. Procedure edit

The ICC – akin to its predecessors – has drawn great inspiration from domestic criminal procedures. Right from the deliberations in Rome, the Court leaned more towards inquisitorial rather than adversarial procedures. Some surmise that this was a reaction to the heavy influence of adversarial systems on the ad hoc tribunals. These procedures can be found both in the Rules of Procedure and Evidence, the Statute, and the Regulations of the Court.

Criminal investigations at the ICC begin with a referral – either by the Prosecutor, the State, or the Security Council. These referrals must meet the conditions of admissibility, gravity, and interests of justice. Whether or not these conditions are met, that is whether there is a reasonable basis to proceed with the investigation, is ascertained by the Pre-Trial Chamber.

The Chamber’s approval allows the criminal investigation to hit the ground. Criminal investigations in the ICC are typically spearheaded by the Prosecutor. They entail interviews with witnesses, forensic examinations, and collection of oral and documentary evidence. Importantly, the investigation relies heavily on cooperation of States given that neither the Office of the Prosecutor nor the ICC have their own police.

Based on the indictment prepared by the Prosecutor, the Court issues summons to the accused. This is followed by a confirmation of charges hearing.[36] This feature is unique to the ICC and was introduced to add a judicial economy filter before cases go to trial. The confirmation of charges stage serves to give the accused a chance to challenge the charges pressed against them, the Prosecutor a chance to improve/modify/withdraw the changes, and the Chamber a chance to assess if the evidence is sufficient to proceed to trial.[37]

The trial follows the confirmation of charges. The conduct of the trial is bound to respect for the accused’s right to fair trial is the fulcrum of the Rome Statute. Fair trial, which is a commitment binding on the States parties, the Court, and the OTP, works to recognize the accused person’s subjecthood. Fair trial has birthed multiple rights including the accused’s right to legal counsel, right to a hearing, right to cross-examination, and such. The Statute recognizes the presumption of innocence of the accused until proven guilty. The onus lies on the Prosecutor to prove the accused’s guilt “beyond reasonable doubt”.[38]

The trial consists of opening statements, presentation of evidence, closing arguments, deliberations, and judgment.[39] While it is generally the Prosecution which opens the trial (and the examination of evidence), the judges hold the discretion to modify the sequence if the case warrants it. Trials at the ICC usually last many months. But the Statute also contains several tools to promote judicial expeditiousness, such as plea bargaining/allowing the accused to admit to their guilt for reduced charges.[40] Trials can yield three outcomes: no case to answer,[41] conviction, or acquittal. The judgment delivered by the Chamber must be full and well-reasoned, it can contain majority and minority opinions.[42]

1.8. Enforcement of judgments and State cooperation with the ICC edit

The primary challenge plaguing the ICC is its enforcement powers. Although decisions of the Court are binding on parties, the ICC does not possess its own enforcement infrastructures. Illustratively, the ICC does not have its own police that could accost those who are charged by the Court and bring them to the Court's premises in the Hague. The only recourse left for the Court is to rely on cooperation of the State parties to the Rome Statute. State parties to the Statute have an obligation to cooperate with the Court in all stages of the investigation and trial: from surrendering suspects/accused and seizing assets to detaining convicts.[43] To prevent conflicts with other obligations, the Statute has also devised Article 98 agreements to seek prior agreement on crimes/individuals that are out of the Court’s reach. Despite the statutory obligation, the Court’s fiscal dependence on State parties has made their cooperation almost completely contingent on States’ political will and their own complicity in the cases brought before the ICC. The recent chequered history of the ICC is testament to this. Of the 36 arrest warrants issued by the Court, only 20 have been enforced. The Court’s warrants against Bosco Ntaganda, Simone Gbagbo, and Omar Al-Bashir were flouted for many months.[44] The Court’s chiding of African States’ failure in Bashir’s case triggered a string of withdrawals (from Burundi, South Africa, and the Gambia). In all three cases, the withdrawals were intended to protect and immunize state officials, including sitting heads of State, from the ICC's reach.[45] The Philippines also notified the ICC of its withdrawal, pushing back on the Prosecutor's efforts to investigate the drug war and former President Duterte's complicity in its violence.[46] Withdrawals have becoming increasingly popular tools for States to express their discontents with the Court, and to curb the Court's prosecutorial reach. This pushback is seemingly quite alive to the Court's treaty-based character and the powers that such a design vests in treaty parties.

These challenges are compounded by the opposition to the ICC’s jurisdiction by powerful States. To impede the Court’s reach, the United States’ Congress has passed the American Service Members’ Protection Act in 2002, empowering the government to stop financial aid to the ICC’s state parties who surrender American nationals to the ICC.[47] When the Prosecutor expressed her desire to prosecute CIA officials in relation to the opening of an investigation in Afghanistan, the US government also went so far as to issue sanctions against ICC officials.[48] Similar non-cooperation quagmires have plagued the opening of investigations in Palestine against Israeli nationals[49] and in Iraq against British nationals.[50]

1.9. Victims’ rights edit

Criminal law – both domestically and in international criminal law – has historically been limiting for victims. The ICC was therefore conceived as a more expansive forum for victims’ participation. In large part, this was a function of the advocacy of non-governmental organizations which ensured that the Rules of Procedure and Evidence at the Court “contained strong provisions on victims’ rights”.[51] Victims as a stakeholder are also defined generatively. As Rule 85 of the Court’s RPE spells out, the term victim under the Statute refers to any “natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the Court”. The term is also said to include institutions and organizations whose properties sustain harm. Whether or not the applicants meet the conditions of victimhood is a determination made by the Court.[52]

Victims’ rights at the Court fall within three main categories: right to reparation, right to protection, and right to participation. The right to representation is typically available at all stages of proceedings. Importantly, each stage of proceedings can see the participation of a different group of victims – whether victims of the situation or the convicted person or of the facts. On some occasions, participation translates into the right to legal representation.[53] When victim groups have mutual interests, they can also be represented by common counsels.[54] The right to protection, under Article 68(1) of the Statute, is effected through general preventative measures (available to all victims to secure their physical, psychological, and mental well-being upon testifying) and more ad hoc measures which are designed and customized to the real risk posed to each victim. The final bucket is the right to reparation. The exercise of this right is typically facilitated by the Registry and once invoked places the onus on the Court to direct the convicted person and/or the Trust Fund to offer reparations to the victims.

B. Hybrid (Mixed) Tribunals edit

Hybrid tribunals are those tribunals that are governed by and have the authority to apply both international and domestic laws. This is unlike the design of the ICC which is only authorized to apply the rules prescribed by an international statute. Predecessor tribunals of the ICC such as the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the former Yugoslavia also can be classified as international tribunals.

2.1. Special Court of Sierra Leone

The Special Court for Sierra Leone (SCSL) was established by treaty between Sierra Leone and the UN, to prosecute crimes committed during the 1991 civil war between militia and the governments in Sierra Leone and Liberia.[55] The Court is independent of both the United Nations and the domestic legal system. The Court is composed of judges – the majority of whom are elected by the United Nations and the remaining by the government of Sierra Leone.[56] The jurisdiction of the Court is circumscribed to crimes against humanity and war crimes committed in non-international armed conflicts. Like the ICC, the Court’s prosecutorial strategy is to prosecute those persons who are most responsible for serious violations of international humanitarian law and Sierra Leonese law.[57] The Court commenced its work in 2002 and wrapped up in 2013, entrusting its pending cases to the Residual Court for Sierra Leone. The SCSL grapples with two key challenges: first, the award of blanket amnesties to the Lord Resistance Army combatants and the subsequent withdrawal of the amnesties.[58] Second, the individual criminal responsibility of child soldiers in the Lord Resistance Army.[59]

2.2. Kosovo Specialist Chambers

The Chambers – and the Specialist Prosecutor’s Office was established in 2011 following a report by the Parliamentary Assembly of the Council of Europe which shed light on the detention, torture, and enforced disappearances of Serbs and Kosovo Albanians during the 1999 conflict in Kosovo.[60]  The Specialist Chambers comprises two organs, the Chambers and the Registry. The Specialist Prosecutor’s Office is an independent office for the investigation and prosecution of the crimes within the jurisdiction of the Specialist Chambers. The Specialist Chambers and the Specialist Prosecutor’s Office are staffed with international judges, prosecutors and officers and have a seat in The Hague, the Netherlands.

The Chambers have been designed as a hybrid court which will apply the Constitution of the Republic of Kosovo and customary international law/international human rights instruments. Local Kosovar populations have been discomfited by the composition/applicable law of the Chambers, finding that is sidelines the local societal fractures and aspirations.[61]

2.3. Extraordinary Chambers in the Courts of Cambodia

In 1997, the Cambodian government approached the United Nations to set up a tribunal to prosecute the crimes committed by the Khmer Rouge against political dissidents from 1975 to 1979. The Court was established through a 2003 agreement between the UN and Cambodia. The ECCC has been absorbed into the Cambodian domestic legal system, albeit supported by the United Nations. The jurisdiction of the ECCC extends to genocide, crimes against humanity, and war crimes (solely in international armed conflicts). The Cambodian government insisted that the Court be predominantly staffed by local judges and prosecutors. This demand was honored. Although the dominance of local staff has not inspired much confidence in the impartiality of the bench, all the judges and prosecutors are appointed by the Cambodian Supreme Council of Magistracy with the UN Secretary-General nominating international personnel.

C. The proposed African Criminal Court edit

Right from the mid-2000s when the ICC’s docket was almost completely populated by cases seeking prosecution of African rebel groups or heads of State, the African Union has voiced its strong objection to being disproportionately targeted by the ICC. Fair to say that the ICC found it difficult to retain the trust of the 34 African States who signed onto its Statute, with States like Burundi choosing to exit the Statute altogether.[62]

The distrust in the ICC prompted the African Union to call for an African criminal court and dissuading African states from cooperating with the ICC. In 2014, the statute of this court – which came to be called the African Court of Justice and Human Rights – was passed[63]. The jurisdiction of the African court and the ICC greatly overlap. Article 46Ebis of the African Criminal Court's Statute is different only in so far as it allows the Court to exercise jurisdiction when the victim is a national of a State party or when a State party’s vital interests have been threatened. The Court has jurisdiction over 14 unique offences, including the core crime but crimes outside the Rome Statute such as collective punishment.[64]

Scholars have flagged that the glaring overlaps between the ICC and the African Criminal Court can lead to problematic consequences. It has been proposed that the overlap be avoided by either refashioning the complementarity principle or allocating transnational/less serious crimes to the African Criminal Court.[65]

Summary edit

This section focusses on the workings and achievements of the ICC, the most prominent universal and permanent international criminal tribunal devoted to the adjudication of criminal responsibility. It also identifies the political pressures against the ICC. The final part of the chapter looks at contemporary hybrid tribunals.

Further Readings edit

  • Cryer, Robert, Hakan Friman, Darryl Robinson, and Elizabeth Wilmhurst. An Introduction to International Criminal Law and Procedure. 2d ed. Cambridge, UK: Cambridge University Press, 2010.
  • Werle, Gerhard. Principles of International Criminal Law. 2d ed. The Hague: TMC Asser, 2009.

Table of Contents edit

Back to home page

Part I - History, Theory, and Methods

Part II - General International Law

Part III - Specialized Fields

Footnotes edit

  1. The first footnote. Please adhere to OSCOLA when formating citations. Whenever possible, provide a link with the citation, ideally to an open-access source.
  2. Christopher Keith Hall, ‘The First Proposal for a Permanent International Criminal Court’ (1998) 322 International Review of the Red Cross 57,
  3. Report of the Committee on International Criminal Jurisdiction, UN Doc. UN GAOR A/2645,
  4. Report of the International Law Commission on the work of its forty-sixth session, UNGAOR 49th session Suppl. No.10, A/49/10 (1994),
  5. Mark Klamberg, Commentary on the Law of the International Criminal Court (TOAEP, 2016), chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/viewer.html?
  6. Article 53 (2) of the Rome Statute and Rule 105 of the Rules of Procedure and Evidence.
  7. Article 82 of the Rome Statute.
  8. Open Society Justice Initiative, Raising the Bar: Improving the nomination and election of judges to the International Criminal Court 32 (2019),, page 30.
  9. Article 42 of the Rome Statute and Rule 11 of the Rules of Procedure and Evidence.
  10. ASP, 21-24 April 2003, Luis Moreno Ocampo of Argentina elected as prosecutor of the ICC.
  11. CPI, Report for ASP 2005, ICC-ASP/4/22,
  12. Request, ICC-01/19-34, para. 56,
  13. Situation in Bangladesh/Myanmar, Corrected version of “Decision on Victims’ joint request concerning hearings outside the host State”, Case No. ICC-01/19, 27 October 2020, para.26,
  14. S. Maupas, The new clothes of the ICC, Justice, 19 December 2015,  
  15. KUMAR, AMIT, Custom as a Source under Article 21 of the Rome Statute (February 22, 2021). Asian Journal of International Law, or
  16. Mia SWART, “Judicial Lawmaking at the ad hoc Tribunals: The Creative Use of the Sources of International Law and ‘Adventurous Interpretation’” (2010) 70 Heidelberg Journal of International Law 459 at 461–2,
  17. Margaret M. DEGUZMAN, “Article 21, Applicable Law” in Otto TRIFFTERER and Kai AMBOS, eds., The Rome Statute of the International Criminal Court: A Commentary, 3rd ed. (München: C.H. Beck, 2016), 933 at 933, para. 2.
  18. Christoph Blakesley, ‘Comparing the Ad Hoc Tribunal for Crimes against Humanitarian Law in the Former Yugoslavia and the Project for an International Criminal Court Prepared by the International Law Commission’ (1996) Intl Rev of Penal L 146.
  19. Sujith Xavier, John Reynolds, Asad Kyani, Third World Approaches to International Criminal Law, 14 (4) Journal of International Criminal Justice (2016).
  20. Alain Pellet, (2018-01-12). Revisiting the Sources of Applicable Law before the ICC. In Arcs of Global Justice: Essays in Honour of William A. Schabas (Oxford University Press, 2018) from
  21. ICC, Prosecutor v. Lubanga, Decision on Victims' Participation, Lubanga (ICC-01/04-01/06-1119), Trial Chamber I, 18 January 2008, § 35, which references the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law.
  22. ICC, Prosecutor v. Muthaura et. al., Decision on the 'Prosecution's Application for leave to Appeal the "Decision Setting the Regime for Evidence Disclosure and Other Related Matters" (ICC-01/09-02/11-48), Case no. ICC-01/09-02/11-77, Pre-Trial Chamber II, 2 May 2011, § 23.
  23. Kate Mackintosh and Lisa Oldring, Watch This Space: Momentum Toward an International Crime of Ecocide, Just Security, 5 December 2022,
  24. Article 24 of the Rome Statute.
  25. The issue of territorial control is live in the Comoros situation which has now been through multiple rounds of refusals by the Prosecutor to open an investigation. ICC, Situation on Registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia, Pre-Trial Chamber I, Notice of Prosecutor’s Final Decision under rule 108(3), as revised and refiled in accordance with the Pre-Trial Chamber’s request of 15 November 2018 and the Appeals Chamber’s judgment of 2 September 2019, 2 December 2019, ICC-01/13-99 (
  26. Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar, ICC-01/19-27, 14 November 2019,
  27. James Crawford, Brownlie’s Principles of Public International Law, 9th. ed., Cambridge University Press, 2019, p. 443 (
  28. ICC, "Prosecutor of the International Criminal Court, Fatou Bensouda, Re-opens the preliminary examination of the situation in Iraq", OTP Press Release, 13 May 2014 (
  29. ICC, "Palestine declares acceptance of ICC jurisdiction since 13 June 2014", 5 January 2015, ICC-CPI-20150105-PR1080 (
  30. Parvathi Menon, Self-Referring to the International Criminal Court: A Continuation of War by Other Means. AJIL Unbound, 109, 260-265 (2015). doi:10.1017/S2398772300001562.
  31. Sarah M. H. Nouwen & Wouter G. Werner, Doing Justice to the Political: The International Criminal Court in Uganda and Sudan, 21 EUR. J. INT’L. L. 941, 951-953 (2010).
  32. Talita de Souza Dias, The Retroactive Application of the Rome Statute in Cases of Security Council Referrals and Ad hoc Declarations: An Appraisal of the Existing Solutions to an Under-discussed Problem, Journal of International Criminal Justice, Volume 16, Issue 1, March 2018, Pages 65–89,
  33. Kamari Maxine Clarke, ‘Affective Justice: The Racialized Imaginaries of International Justice’ (2019) 42:2 Political and Legal Anthropology Review 244, at 247,
  34. ICC, Prosecutor v. Muthaura, Kenyatta and Ali, Appeals Chamber, Judgment on the appeal of the Republic of Kenya against the decision of Pre-Trial Chamber II of 30 May 2011 entitled “Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute", 30 August 2011, ICC-01/09-02/11-274, paras. 1 and 40,
  35. ICC, Prosecutor v. Al Hassan, Judgment on the appeal of Mr. Al Hassan against the  decision of  Pre-Trial Chamber  I entitled ‘Décision relative à l’exception d’irrecevabilité pour  insuffisance  de gravité de  l’affaire  soulevée par  la défense’, No. ICC-01/12-01/18  OA, 19 February 2020,
  36. ICC, Prosecutor v. Ruto and Sang, Trial Chamber V, Decision on the content of the updated document containing the charges, 28 December 2012, ICC-01/09-01/11-522, para. 14 (
  37. Article 61 of the Rome Statute.
  38. Arts. 66(2)–(3) and 67(1)(i) of the Rome Statute.
  39. Article 63 and 71 of the Rome Statute.
  40. Art. 65 of the ICC Statute and Rule 139 of the ICC Rules of Procedure and Evidence.
  41. ICC, Prosecutor v. Gbagbo and Ble, Judgment in the appeal of the Prosecutor against Trial Chamber I’s decision on the no case to answer motions, Case no. ICC-02/11-01/15-1400, 31 March 2021,
  42. ICC, Prosecutor v. Lubanga, Trial Chamber, Judgment pursuant to Article 74 of the Statute, 14 March 2012, ICC-01/04-01/06-2842 (
  43. Articles 86 and 88 of the Rome Statute.
  44. Saumya Uma. “State Cooperation and the Challenge to International Criminal Justice.” The Wire. Accessed January 31, 2022.
  45. Ssenyonjo, Manisuli, 'State Withdrawals from the Rome Statute of the International Criminal CourtSouth Africa, Burundi, and The Gambia', in Charles Chernor Jalloh, and Ilias Bantekas (eds), The International Criminal Court and Africa (Oxford, 2017; online edn, Oxford Academic, 23 Nov. 2017),
  47. Department Of State. The Office of Electronic Information, Bureau of Public Affairs. “American Service-Members’ Protection Act.” Department Of State. The Office of Electronic Information, Bureau of Public Affairs., July 30, 2003.
  48. Federal Register. “Blocking Property of Certain Persons Associated With the International Criminal Court,” June 15, 2020.
  49. NBC News. Netanyahu Calls ICC Investigation “Undiluted Anti-Semitism” | NBC News NOW, 2021.
  50. Cormacain, Ronan. “Overseas Operations Bill: Getting Away Witals when powerful States are implicated (particularly those who are members of the Council or strong allies of Council membh Murder - Dr Ronan Cormacain.” UK Human Rights Blog, January 20, 2021.
  51. Amnesty Int'l, The International Criminal Court: Ensuring an effective role forvictims, Al Index: IOR 40/10/1999, July 1, 1999, available at
  52. Regulation 109 of the Court's Regulations.
  53. Rule 91 (2), International Criminal Court, Rules of Procedure and Evidence, Doc. ICC-ASP/1/3 (part II-A),
  54. International Criminal Court, Rules of Procedure and Evidence Doc. ICC-ASP/1/3, rule 90 (1).
  55. SC Res. 1315(2000) of 14 August 2000,  
  56. Art. 14 of the SCSL Statute.
  57. Art. 1(1) of the SCSL Statute. The date relates to an earlier peace agreement between the Government of Sierra Leone and RUF, signed in Abidjan on 30.11.1996
  58. Sadat, Leila. “SCSL Symposium: The Important Contributions of the Special Court for Sierra Leone on Amnesties and Immunities–Reinforcing Foundational Principles of International Criminal Law, Part I.” Opinio Juris (blog), March 22, 2021.
  59. See Appeals Chamber, The Prosecutor v Sam Hinga Norman, SCSL-2004-14-AR72(E) Decision on preliminary motion based on lack of jurisdiction (child recruitment) (31 May 2004)
  60. Council of Europe Parliamentary Assembly, Committee on Legal Affairs and Human Rights, AS/Jur (2010) 46 of 12.12.2010.
  61. Andrea Trigoso. “The Kosovo Specialist Chambers: In Need of Local Legitimacy.” Opinio Juris (blog), June 8, 2020.
  62. AfricaNews. “Burundi Is Officially Not a Member of the International Criminal Court (ICC).” Africanews, October 27, 2017. South Africa and Gambia also threatened to exit, but couldn’t due to internal obstacles. While the South African government denounced the inconsistency of Art. 27 ICCSt. with customary international law, the High Court of South Africa  declared that decision unconstitutional and invalid without a prior parliamentary approval (Judgment, Democratic Alliance v. Minister of International Relations and Cooperation and Others (83145/2016), High Court of South Africa, 22 February 2017)). The Gambia’s new President Yahya Jammeh reversed the last government’s decision to withdraw.
  63. Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (Malabo Protocol) (adopted 27 June 2014),
  64. Art. 28D(b)(v), (xxviii), (xxix) to (xxxiii) and Art. 28D(e)(xvi) to (xxii), but also (g) of the Statute.
  65. See C. Murungu, ‘Towards a Criminal Chamber in the African Court of Justice and Human Rights’, 9 Journal of International Criminal Justice (JICJ) (2011) 1067, at 1069–1072; H. van der Wilt, ‘Complementary jurisdiction (Article 46H)’, in G. Werle and M. Vormbaum (eds), The African Criminal Court: A Commentary on the Malabo Protocol (TMC Press, 2017) 11, at 15).