International Criminal Court

Fact sheet compiled by the Women's Caucus for Gender Justice

History
Jurisdiction
No Immunities
Complementarity
Preconditions
Trigger Mechanisms
The ICC Jurisdiction versus Universal Jurisdiction
Structure
Crimes of Sexual and Gender Violence in the ICC
Gender Integration in the Statute of the International Criminal Court
Victims and Witnesses in the ICC
Evidentiary Issues

History

Efforts to create a permanent international criminal tribunal hark back to World War II and the establishment of international military tribunals for Nuremberg and the Far East. At that time, there were discussions about a permanent tribunal. The Genocide Convention even contained language bestowing jurisdiction over the crime of genocide to an eventual permanent court. The onset of the Cold War in the years following the end of World War II prevented further plans toward such a Court.

Plans were resumed in 1995 when the first serious negotiations began. At that point, with the end of the Cold War in the late eighties, and the Security Council’s establishment of ad hoc tribunals for the Former Yugoslavia and Rwanda in 1993 and 1995, the international community recognized that the time had come for a permanent court.

Negotiations were held in periodic two or three week meetings from 1995 to 1998. Finally, at the Diplomatic Conference for Plenipotentiaries in Rome, the statute of the International Criminal Court was adopted by a vote of 120-7. The Rome Statute requires 60 ratifications for entry into force. By December 31, 2000, the date of closure for signature, 139 countries had signed the Rome Statute. As of May 21, 2001, 32 countries have ratified.

Jurisdiction

The crimes within the Court’s jurisdiction include genocide, war crimes, crimes against humanity and aggression. (Articles 5-8). While aggression is intended to be within the jurisdiction of the Court, it remained undefined in the Rome Statute because it was too controversial and would have delayed the adoption of the Rome Statute and establishment of the ICC.

No Immunities

The Rome Statute explicitly provides that there are no immunities for the crimes within the court’s jurisdiction, including head of state and official acts, etc. (Article 27) Anyone can be prosecuted for their responsibility for the commission of crimes within the Court’s jurisdiction.

Complementarity

The Court’s jurisdiction is complementary to that of national systems, in contrast to the tribunals in Rwanda and the Former Yugoslavia which have "primacy" over national systems. (Articles 1 and 17) Primacy means that these courts get to decide which suspects they try and the national system must surrender these accused to the tribunal and forego their national case against them. The principle is known as "complementarity" and means the ICC can only pursue cases if the national system is unwilling or unable to do so.

In determining unwillingness, the Court must inquire whether if there are proceedings, they are taken in "bad faith" to shield the accused from prosecution at the international level; whether there is an "unjustified delay" which is inconsistent with a sincere desire or willingness to bring the accused to trial; or whether the principles of independence and impartiality of the judiciary are not at work in the national system.

In determining whether a national system is unable to pursue the case, the Court must determine whether there has been a total or substantial collapse or unavailability of the national courts, due to the effects of armed conflict or civil strife.

Preconditions

Preconditions are those conditions which must be met in order for the Court to exercise its jurisdiction in a particular case. (Article 12) Thus, the Court can only exercise its jurisdiction if the state where the crimes occurred is a party to the statute; if the state of nationality of the perpetrators is a party to the statute; or if the state, or states, involved consent to the Court’s jurisdiction.

On the other hand, the Security Council can refer a situation to the Court when acting pursuant to powers under Chapter VII of the UN Charter. When the Security Council refers a case, the Court will have jurisdiction even if none of the countries involved are parties to the statute. (Articles 12 and 13)

The precondition allowing the Court to have jurisdiction over a case if the state where the crimes occurred is a party was contentious because it would mean that nationals of a non-state party could be susceptible to the court’s jurisdiction if they’ve committed crimes on the territory of a state party. (Territorial jurisdiction is one of the most basic and longstanding bases of jurisdiction in criminal law.)

Trigger Mechanisms

Cases can get to the Court via referrals by States Parties to the Rome Statute or the Security Council. In addition, the Prosecutor can initiate investigations on her own initiative. (Article 13) The most contentious "trigger mechanism" was the ability of the Prosecutor to initiate an investigation and prosecution.

Advocates of this provision believed it necessary to ensure the independence of the Court from the Security Council. Opponents of the provision wanted as much Security Council control over the Court as possible.

In compromise, there are two limits on the Prosecutor’s power: (1) the Prosecutor must obtain approval or authorization to proceed with an investigation from a Pre-Trial Panel of judges; and (2) the Security Council may elect to defer an investigation or prosecution for a period of 12 months and the deferral may be renewed for an unlimited number of times.

The ICC Jurisdiction versus Universal Jurisdiction

Universal Jurisdiction is a principle of international criminal law which holds that some crimes are so egregious as to affect the fabric of international law and relations as a whole and that all states have the power and a duty to prosecute such crimes, or extradite the perpetrators to those states willing to do so, regardless of where they were committed and by whom.

Historically, this was originally applied to piracy on the high seas. In modern times it is commonly understood that this principle applies to genocide, war crimes and crimes against humanity, including torture, various forms of sexual violence, extra-judicial executions and enforced disappearances. These acts have become international crimes via customary law, treaties or conventions or general principles.

Many in the ICC advocated that the Court should also have universal jurisdiction. However, in compromise to staunch opponents, this principle was diluted resulting in the preconditions and trigger mechanisms listed above.

Structure

The Rome Statute provides that the Court will be officially seated in the Hague. (Article 3). However, there is the capacity for it to be situated elsewhere if it’s deemed necessary or desirable. (Article 3 and __)

The Court will consist of three separate and independently functioning organs: (1) the Presidency, which will consist of a president and first and second vice-presidents to be elected from and by the judges of the tribunal; (2) the Office of the Prosecutor; and (3) the Registry.

The Victims and Witnesses Unit will be housed in the Registry and must staff experts on trauma relating to violence against women and children. The judges will be nominated by any or each State Party and elected by the Assembly of States Parties. There are various criteria for nominees relating to expertise in different areas of the law, geographic representation, a fair representation of men and women judges and representation of the legal systems of the world.

Crimes of Sexual and Gender Violence in the ICC

With respect to violence against women in armed conflict as well as peacetime, the Rome Statute is historic in that it includes a series of core crimes of sexual and gender violence, some of which are codified in an international treaty for the first time ever.
The core crimes include:
- rape
- sexual slavery
- enforced prostitution
- forced pregnancy
- enforced sterilization
- other forms of sexual violence

These crimes are listed as crimes against humanity (Article 7) and war crimes in international armed conflict (Article 8(2)(b) ) as well as internal armed conflict (Article 8(2)(e)).

Rape and enforced prostitution had been listed in the Geneva Conventions as acts which women must be protected against but there was no specific recognition of these acts as grave breaches nor a recognition in any other sense of their gravity. The Rome Statute qualifies these crimes as among the most serious through its codification of them as a general matter and through language linking them to other grave breaches and other serious violations of Common Article 3.In addition, to the core crimes of sexual and gender violence, gender-based persecution is included as a crime against humanity – another first. (Article 7(1)(h) Trafficking is included as a crime, under the general definition of enslavement, with an emphasis on trafficking of women and children. (Article 7(2)(c)).The Elements Annex, a document intended to define the crimes within the Court’s jurisdiction in more detail, provides definitions for the crimes, i.e. the acts and mental elements that constitute the criminal activity. (See charts of definitions). In many respects, these definitions are progressive conceptualizations of crimes which traditionally have had discriminatory and harmful elements in many jurisdictions.

RAPE SEXUAL SLAVERY
ENFORCED PROSTITUTION
FORCED PREGNANCY
ENFORCED STERILIZATION

i. The perpetrator invaded15 the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body.
ii. The invasion was committed by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent. 16
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15. The concept of "invasion" is intended to be broad enough to be gender-neutral.

16. It is understood that a person may be incapable of giving genuine consent if affected by natural, induced or age-related incapacity. This footnote also applies to the corresponding elements of article 7(1)(g) - 3, 5 and 6.
i. The perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty.53
ii. The perpetrator caused such person or persons to engage in one or more acts of a sexual nature.

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52 Given the complex nature of this crime, it is recognized that its commission could involve more than one perpetrator as a part of a common criminal purpose."

53 It is understood that such deprivation of liberty may, in some circumstances, include exacting forced labour or otherwise reducing a person to servile status as defined in the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery of 1956. It is also understood that the conduct described in this element includes trafficking in persons, in particular women and children.
i. The perpetrator caused one or more persons to engage in one or more acts of a sexual nature by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive
environment or such person’s or persons’ incapacity to give genuine consent.
ii. The perpetrator or another person obtained or expected to obtain pecuniary or other advantage in exchange for or in connection with the acts of a sexual nature.
 
 
i. The perpetrator confined one or more women forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law.
i. The perpetrator deprived one or more persons of biological reproductive capacity.54
ii. The conduct was neither justified by the medical or hospital treatment of the person or persons concerned nor carried out with their genuine consent.55-----------------------
54 The deprivation is not intended to include birth-control measures which have a non-permanent effect in practice.
55 It is understood that "genuine consent" does not include consent obtained through deception.

SEXUAL VIOLENCE
PERSECUTION

i. The perpetrator committed an act of a sexual nature against one or more persons or caused such person or persons to engage in an act of a sexual nature by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment or such person’s or persons’ incapacity to give genuine consent.
 
Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the CourtArticle 7(2)(g)
"Persecution" means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity;

Gender Integration in the Statute of the International Criminal Court
 

* Rape, Sexual Slavery, Enforced Prostitution, Forced Pregnancy, Enforced Sterilization and other Sexual Violence. The ICC Statute explicitly recognizes rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization and other grave forms of sexual violence as war crimes in international and non-international armed conflict as well as crimes against humanity. (Articles 8(2)(b)(xxii), 8(2)(e)(vi) and 7(1)(g) )

* Persecution and Trafficking. In addition to the crimes of sexual and gender violence discussed above, persecution is included in the ICC Statute as a crime against humanity and specifically includes for the first time the recognition of gender as a basis for persecution. The ICC Statute also includes trafficking as a crime against humanity as among the crimes of enslavement. (Articles 7(1)(h), 7(1)(c) and 7(2)(c) )

* Genocide. The ICC Statute adopts the definition of genocide accepted in the Genocide Convention. However, in the negotiations held since the Rome treaty conference to further elaborate upon the elements of offenses with the Court’s jurisdiction, there is currently an explicit statement in the commentary that rape and other sexual violence can constitute acts of genocide. (Article 6)

* Non-discrimination. The Statute specifically states that the application and interpretation of law must be without adverse distinction on the basis of enumerated grounds, including gender. (Article 21)
 
* Witness Participation and Protection. The Court has an over-arching responsibility to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses, taking into account all relevant factors, including age, gender, health and the nature of the crime. The Court may take appropriate protective measures in the course of trial, including in camera proceedings and allowing the presentation of evidence by electronic means. In addition, the Prosecutor is required to take these concerns into account in both the investigative and the trial stage. (Article 68)

* Victim Witness Unit. The statute provides for the creation of a Victims and Witnesses Unit (VWU) within the Court's registry (not in the office of the Prosecutor in recognition that protection of witnesses should be independent of prosecutorial imperatives). The VWU will provide protective measures, security arrangements, counseling and other appropriate assistance for witnesses, victims and others at risk on account of their testimony. (Article 43)

* Participation. The statute explicitly recognizes the right survivors to participate in the justice process, directly or through legal representatives, by presenting their views and concerns at all stages which affect their personal interests. (Article 68(3) ) Reparations. The statute includes a provision enabling the Court to establish principles and, in certain cases, to award reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. (Article 75)

* Women on the Court. The statute requires that the need for a "fair representation of female and male judges" be taken into account in the selection process. The same provision applies to the selection of staff in the Office of the Prosecutor and in all other organs of the Court. (Article 36(8)(a)(iii)

* Legal Expertise on Violence Against Women. The statute requires that, in the selection of judges, prosecutors and other staff, the need for legal expertise on violence against women or children must be taken into account. The Women’s Caucus insisted on this additional provision in recognition of the significance of crimes against women, the need for expertise at every level to ensure these crimes are effectively prosecuted and the fact that expertise in prosecution of gender crimes is not necessarily tied to biological sex and that both women and men can bring such expertise. (Articles 44(2) and 36(8) )

* Legal Advisors on Sexual and Gender Violence. The Prosecutor is required to appoint advisers with legal expertise on specific issues, including sexual and gender violence. This is an important mechanism for ensuring both that gender crimes are properly investigated and prosecuted and victims properly respected and protected. (Article 42(9) )

Victims and Witnesses in the ICC

The Rome Statute contains a series of mandates relating to the participation and protection of victims of witnesses. Article 68 of the Rome Statute is the centerpiece of these mandates, which are developed in more detail in the draft Rules of Procedure and Evidence which were adopted by the ICC Preparatory Commission in June 2000.

Participation

Victims and witnesses have a right to participate in proceedings before the Court where their personal interests are affected. (Article 68) They may do so either directly or through a legal representative. (Article 68 and Rules).

Protection

The Court has an obligation to protect the "safety, physical and psychological well-being, dignity and privacy of victims and witnesses." (Article 68(1)) The Court is required to pay special attention to relevant factors including the nature of the crime, particularly when it involves sexual or gender violence against children.

Among the methods the Court may use to safeguard the testimony or participation of victims are the possibility of conducting in camera proceedings (non-public) and presentation of evidence by electronic or other special means.

The Statute mandates the establishment of a Victims and Witnesses Unit with the Registry to provide protective measures, security arrangements, counseling and other appropriate assistance for victims and witnesses. (Article 43(6)) In addition, the VWU must include staff with expertise in trauma related to crimes of sexual violence.

Reparations

The Rome Statute mandates that the Court establish principles relating to reparations, which include compensation, restitution and rehabilitation. (Article 75) The Court may upon request by victims or, in exceptional cases, on its own initiative, make a determination about the nature and scope of damages in a particular case. When appropriate the Court may issue an award of reparations directly against a convicted person.

The Statute also mandates that a Trust Fund be established for the benefit of victims and witnesses. (Article 79) The Court may also make an award of reparations to victims which draws on this Trust Fund as appropriate.

Evidentiary Issues

• Cases of Sexual Violence

The Rules of Procedure and Evidence set out some evidentiary guidelines for the Court to follow in cases of sexual violence. The guidelines relate to issues of corroboration, sexual conduct and consent.

The rules expressly prohibit the Court from requiring corroboration of a victim’s testimony. (Rule 63)

Rules 70-72 govern the handling of sexual conduct evidence and consent in cases of sexual violence. With respect to consent, the rule lays out a series of principles which establish that consent cannot be inferred from different circumstances, such as the victim's silence or acquiescence.

With regard to the victim’s sexual conduct, the rule states that sexual conduct evidence shall not be admitted. The rule contains a reference to article 69.4 of the statute, which is a restatement of a basic evidentiary principle and which would apply to all evidence anyway.

The third component of the rule sets up a screening procedure to be held in the judge’s chambers whenever one of the sides wishes to admit consent or sexual conduct evidence. The hearing must be held confidentially and the judge must find that the evidence is highly relevant and admissible and is not being admitted for any of the prohibited purposes.

• Counsellor-Patient Privilege

The Rules of Procedure and Evidence contain a strong presumption in favor of recognizing relationship between psychiatric counselors and patients as privileged, meaning they should be viewed as confidential and not subject to disclosure in a judicial proceeding. The formulation in Rule 73 contains a satisfactory standard to be applied that will assist the Court in determining whether the certain communications should be off-limits. Further, the provision explicitly nudges the Court in the direction of recognizing the counselor-patient privilege. The International Committee for the Red Cross was given a high degree of deference in light of the unique role it plays in humanitarian affairs. This is in contrast to communications between lawyers and clients which have long been recognized as an absolute privilege.

United Nations Webpage for the International Criminal Court

Women's Caucus for Gender Justice in the International Criminal Court Webpage

Coalition for the International Criminal Court Website (includes up to date information on ratification status)