NATIONAL ECONOMICS UNIVERSITY

INTERNATIONAL LAW
Topic:
The jurisdiction of ICC

GROUP 10

Nguyen Phuong Linh 11213314

Le Phuong Linh 11213185

Class: International Law

International Economics EEP 63C
Instructor: Dr. Vu Van Ngoc

Hanoi, 2023
 I. What is ICC?
1. Definition
The International Criminal Court (“the ICC” or “the Court”) is a permanent international
court established to investigate, prosecute and try individuals accused of committing the most
serious crimes of concern to the international community as a whole, namely the crime of
genocide, crimes against humanity, war crimes and the crime of aggression.

2. Background
On July 1, 2002, after the requisite number of countries (60) ratified the agreement, the court
began sittings. It is headquartered in the Netherlands at The Hague. The ICC was established
as a court of last resort to prosecute the most heinous offences in cases where national courts
fail to act.

As of October 2023, 124 States have ratified the Rome Statute. However, two countries have
withdrawn from the ICC: Burundi (withdrawal effective on October 2017) and the
Philippines (withdrawal effective on 17 March 2019), while two others had notified of their
decision to withdraw but later revoked it: South Africa (notification made on 19 October
2016 and revoked on 7 March 2017) and The Gambia (notification made on 10 November
2016 and revoked on 10 February 2017).

Unlike the International Court of Justice, which hears disputes between states, the ICC
handles prosecutions of individuals. The court’s jurisdiction extends to offences that occurred
after July 1, 2002, that were committed either in a state that has ratified the agreement or by a
national of such a state.

The idea of establishing a permanent international criminal court was first considered after
the Nuremberg trials held under the International Military Tribunal (IMT) established after
the Second World War in 1945 but States failed to agree until 1998.

The Rome Statute was adopted with the aim of filling the gap left since the Second World
War in the international community’s ability to prosecute and punish the perpetrators of the
most serious crimes. It builds on the experience of the two “ad hoc” International Criminal
Tribunals established by the UN Security Council (UNSC) resolutions to prosecute crimes
committed in the former Yugoslavia (ICTY) (operational from 1993 through 2017) and in
Rwanda (ICTR) (operational from 1994 through 2015).

The ICC’s first hearing, held in 2006, was to decide whether charges should be brought
against Thomas Lubanga, who was accused of recruiting child soldiers in the Democratic
Republic of the Congo. Lubanga’s trial, the first conducted by the ICC, began in January
2009, and in March 2012 the court found him guilty and later imposed a 14-year prison
sentence.
In May 2007 the court issued arrest warrants for a government minister and a militia leader in
Sudan for their roles in war crimes and crimes against humanity committed by Sudanese
forces in Darfur. The ICC issued a similar warrant in March 2009 for Sudanese Pres. Omar
Hassan Ahmad al-Bashir—the first time the court sought the arrest of a sitting head of state.

In November 2019 the ICC began an investigation into crimes within its jurisdiction
allegedly committed by the armed forces of Myanmar (Burma) against the Rohingya, a
Muslim community concentrated in Myanmar’s Rakhine (Arakan) state.

Get a Britannica Premium subscription and gain access to exclusive content. In March 2022,
soon after Russia launched a large-scale military invasion of Ukraine, the ICC announced an
investigation into possible crimes committed in Ukraine by Russian armed forces. In March
2023 the ICC issued a warrant for the arrest of Russian Pres. Vladimir Putin, charging him
with responsibility for the war crimes of unlawful deportation of Ukrainian children and
unlawful transfer of Ukrainian children from areas of Ukraine occupied by the Russian
military to the Russian Federation.

Throughout its 20 years of existence, the ICC Prosecutor and Judges have navigated between
the limitations of the Rome Statute and the expectations of victims. This is reflected both in
the number of situations and cases brought before the ICC, but also in the many challenges
and shortcomings associated with their investigation or adjudication by the ICC (VI). Despite
the failures and frustrations, the work of the ICC is contributing to the emergence of
international jurisprudence, consolidating the learning process of international criminal
justice in relation to mass crimes and disseminating common standards at the national level.

3. Structure & Organization

The ICC is composed of four organs: the Presidency, the Chambers and Judges, the Office of
the Prosecutor and the Registry. Each of these organs has a specific role and mandate.
● The Presidency
- The Presidency consists of three judges (the President and two Vice-
Presidents) elected by an absolute majority of the 18 judges of the Court for a
maximum of two, three-year terms
- The Presidency is responsible for the proper administration of the Court and
any other function conferred on it in accordance with the Rome Statute
● The Chambers and Judges
- The 18 judges, including the three judges of the Presidency, are assigned to
the different Chambers (Pre-Trial, Trial and Appeals)
- The judges are chosen from among persons of high moral character,
impartiality, and integrity, who possess the qualifications required in their
respective States for appointment to the highest judicial offices. They must be
competent in relevant areas of international law, such as international
humanitarian law or human rights law, and have the necessary relevant
experience in criminal law and procedure.
 - The judges are divided into three divisions, whose judicial functions are
carried out by three Chambers:
+) The Appeals Division is composed of the president and four judges; the
Appeals Chamber is composed of all the judges of the Division.
+) The Trial Division is composed of not less than six judges; the Trial
Chamber is composed of three of the judges from this Division.
+) The Pre-Trial Division is composed of not less than six judges; the
composition of the Pre-Trial Chamber is composed of three judges or a single
judge of that Division in accordance with the Rules of Procedure and Evidence
- The Statute provides for the possibility of having more than one Trial or Pre
Trial Chambers operating simultaneously when the Court’s workload so
requires
● The Office of the Prosecutor
- The Office of the Prosecutor is an independent organ of the Court. Its mandate
is to receive and analyse information on situations or alleged crimes within the
jurisdiction of the ICC, to analyse situations referred to it in order to determine
whether there is a reasonable basis to initiate an investigation into a crime of
genocide, crimes against humanity, war crimes or the crime of aggression, and
to bring the perpetrators of these crimes before the Court.
- In order to fulfil its mandate, the Office of the Prosecutor is composed of three
divisions:
+) The Investigation Division, which is responsible for conducting
investigations (including gathering and examining evidence, questioning
persons under investigation as well as victims and witnesses). In this respect,
for the purpose of establishing the truth, the Statute requires the Office of the
Prosecutor to investigate incriminating and exonerating circumstances equally.
+) The Prosecution Division has a role in the investigative process, but its
principal responsibility is litigating cases before the various Chambers of the
Court.
+) The Jurisdiction, Complementarity and Cooperation Division, which, with
the support of the Investigation Division, assesses information received and
situations referred to the Court, analyses situations and cases to determine
their admissibility and helps secure the cooperation required by the Office of
the Prosecutor in order to fulfil its mandate.
● The 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. It also supports the
Registrar’s activities in relation to defence, victims, communication and
security matters. It ensures that the Court is properly serviced and develops
effective mechanisms for assisting victims, witnesses and the defence in order
to safeguard their rights under the Rome Statute and the Rules of Procedure
and Evidence.
 - As the Court’s official channel of communication, the Registry also has
primary responsibility for the ICC’s public information and outreach activities.

II. The jurisdiction of the ICC

Crime within jurisdiction

According to Article 5 ICCRSt:
The jurisdiction of the Court shall be limited to the most serious crimes of concern to
the international community as a whole. The Court has jurisdiction in accordance
with this Statute with respect to the following crimes:
(a) The crime of genocide;
(b) Crimes against humanity;
(c) War crimes;
(d) The crime of aggression

1. Genocide
a. Definition
Article 6 ICCRSt refers to genocide as the “crime of all crimes””, i.e. to the crime of
genocide:
For the purpose of this Statute, "genocide" means any of the following acts committed
with intent to destroy, in whole or in part, a national, ethnical, racial or religious
group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
Currently, in order for a crime to be classified as genocide and to fall under the ICC’s
jurisdiction, it must be proven that it meets all constituent elements and the mens rea
(yếu tố cấu thành tội phạm) of Article 6 ICCRSt. Hence, with regard to the provision
of Article 6(a) ICCRSt (Killing members of the group), the Elements of Crimes
explicitly stipulate the following prerequisites:
1. The perpetrator killed one or more persons.
2. Such person or persons belonged to a particular national, ethnical, racial or
religious group.
3. The perpetrator intended to destroy, in whole or in part, that national, ethnical,
racial or religious group, as such.
4. The conduct took place in the context of a manifest pattern of similar conduct
directed against that group or was conduct that could itself effect such destruction.

b. Mens rea of the Crime of Genocide Under the Rome Statute

 The intent is the most difficult element to determine. To constitute genocide, there
must be a proven intent on the part of perpetrators to physically destroy a national, ethnical,
racial or religious group. Cultural destruction does not suffice, nor does an intention to simply
disperse a group. It is this special intent, or dolus specialis, that makes the crime of genocide
so unique.
Importantly, the victims of genocide are deliberately targeted – not randomly –
because of their real or perceived membership of one of the four groups protected under the
Convention (which excludes political groups, for example). This means that the target of
destruction must be the group, as such, and not its members as individuals. Genocide can also
be committed against only a part of the group, as long as that part is identifiable (including
within a geographically limited area) and “substantial.”

The mens rea of the crime of genocide incorporates the intent to destroy, in whole or
in part, a national, ethnical, racial or religious group. Article 30(1) ICCRSt states that:

1. Unless otherwise provided, a person shall be criminally responsible and liable for
punishment for a crime within the jurisdiction of the Court only if the material
elements are committed with intent and knowledge.
With the definition of genocide provided in Article 6 ICCRSt refers to “acts
committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious
group”, therefore, it can be observed that the crime of genocide is comprised of two
subjective elements: “i. a general subjective element that must cover any genocidal act
provided for in article 6(a) to (e) of the Statute, and which consists of article 30 intent and
knowledge requirement; and ii. an additional subjective element, normally referred to as
‘dolus specialis’ or specific intent, according to which any genocidal acts must be carried out
with the ‘intent to destroy in whole or in part’ the targeted group”.
Hence, there are two special elements arising from the aforementioned definition of this
particular crime’s mens rea. Firstly, the victims must be members of a particular group
(national, ethnic, racial or religious) and must be targeted because of their membership in that
group. Secondly, the crimes committed must be part of an overall objective of destroying the
group.

2. Crime against humanity under the ICC’s jurisdiction

a. Definition
According to Article 7 ICCRSt:
1. For the purpose of this Statute, "crime against humanity" means any of the
following acts when committed as part of a widespread or systematic attack
directed against any civilian population, with knowledge of the attack:
(a) Murder;
(b) Extermination;
(c) Enslavement;
(d) Deportation or forcible transfer of population;
 (e) Imprisonment or other severe deprivation of physical liberty in violation of
fundamental rules of international law;
(f) Torture;
(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced
sterilization, or any other form of sexual violence of comparable gravity;
(h) 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 Court;
(i) Enforced disappearance of persons;
(j) The crime of apartheid;
(k) Other inhumane acts of a similar character intentionally causing great
suffering, or serious injury to body or to mental or physical health.
2. For the purpose of paragraph 1:
(a) "Attack directed against any civilian population" 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;
(b) "Extermination" includes the intentional infliction of conditions of life,
inter alia the deprivation of access to food and medicine, calculated to bring
about the destruction of part of a population;
(c) "Enslavement" means the exercise of any or all of the powers attaching to
the right of ownership over a person and includes the exercise of such power
in the course of trafficking in persons, in particular women and children;
(d) "Deportation or forcible transfer of population" means forced displacement
of the persons concerned by expulsion or other coercive acts from the area in
which they are lawfully present, without grounds permitted under international
law;
(e) "Torture" means the intentional infliction of severe pain or suffering,
whether physical or mental, upon a person in the custody or under the control
of the accused; except that torture shall not include pain or suffering arising
only from, inherent in or incidental to, lawful sanctions;
(f) "Forced pregnancy" means the unlawful confinement of a woman forcibly
made pregnant, with the intent of affecting the ethnic composition of any
population or carrying out other grave violations of international law. This
definition shall not in any way be interpreted as affecting national laws
relating to pregnancy;
(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;
(h) "The crime of apartheid" means inhumane acts of a character similar to
those referred to in paragraph 1, committed in the context of an
institutionalized regime of systematic oppression and domination by one racial
 group over any other racial group or groups and committed with the intention
of maintaining that regime;
(i) "Enforced disappearance of persons" means the arrest, detention or
abduction of persons by, or with the authorization, support or acquiescence of,
a State or a political organization, followed by a refusal to acknowledge that
deprivation of freedom or to give information on the fate or whereabouts of
those persons, with the intention of removing them from the protection of the
law for a prolonged period of time.
3. For the purpose of this Statute, it is understood that the term "gender" refers to
the two sexes, male and female, within the context of society. The term
"gender" does not indicate any meaning different from the above.

3. The ICC’s Jurisdiction over war crimes

a. Definition
According to Article 9 ICCRSt:
1. The Court shall have jurisdiction in respect of war crimes in particular when
committed as part of a plan or policy or as part of a large-scale commission of such
crimes.
2. For the purpose of this Statute, "war crimes" means:
(a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the
following acts against persons or property protected under the provisions of the relevant
Geneva Convention:
(i) Wilful killing;
(ii) Torture or inhuman treatment, including biological experiments;
(iii) Wilfully causing great suffering, or serious injury to body or health;
(iv) Extensive destruction and appropriation of property, not justified by
military necessity and carried out unlawfully and wantonly;
(v) Compelling a prisoner of war or other protected person to serve in the
forces of a hostile Power;
(vi) Wilfully depriving a prisoner of war or other protected person of the rights
of fair and regular trial;
(vii) Unlawful deportation or transfer or unlawful confinement; (viii) Taking
of hostages.
(b) Other serious violations of the laws and customs applicable in international armed
conflict, within the established framework of international law, namely, any of the
following acts:
(i) Intentionally directing attacks against the civilian population as such or
against individual civilians not taking direct part in hostilities;
(ii) Intentionally directing attacks against civilian objects, that is, objects
which are not military objectives;
(iii) Intentionally directing attacks against personnel, installations, material,
units or vehicles involved in a humanitarian assistance or peacekeeping mission in
accordance with the Charter of the United Nations, as long as they are entitled to the
protection given to civilians or civilian objects under the international law of armed
conflict;
(iv) Intentionally launching an attack in the knowledge that such attack will
cause incidental loss of life or injury to civilians or damage to civilian objects or
widespread, long-term and severe damage to the natural environment which would be
clearly excessive in relation to the concrete and direct overall military advantage
anticipated;
(v) Attacking or bombarding, by whatever means, towns, villages, dwellings
or buildings which are undefended and which are not military objectives;
(vi) Killing or wounding a combatant who, having laid down his arms or
having no longer means of defence, has surrendered at discretion;
(vii) Making improper use of a flag of truce, of the flag or of the military
insignia and uniform of the enemy or of the United Nations, as well as of the
distinctive emblems of the Geneva Conventions, resulting in death or serious personal
injury;
(viii) The transfer, directly or indirectly, by the Occupying Power of parts of
its own civilian population into the territory it occupies, or the deportation or transfer
of all or parts of the population of the occupied territory within or outside this
territory;
(ix) Intentionally directing attacks against buildings dedicated to religion,
education, art, science or charitable purposes, historic monuments, hospitals and
places where the sick and wounded are collected, provided they are not military
objectives;
(x) Subjecting persons who are in the power of an adverse party to physical
mutilation or to medical or scientific experiments of any kind which are neither
justified by the medical, dental or hospital treatment of the person concerned nor
carried out in his or her interest, and which cause death to or seriously endanger the
health of such person or persons;
(xi) Killing or wounding treacherously individuals belonging to the hostile
nation or army;
(xii) Declaring that no quarter will be given;
(xiii) Destroying or seizing the enemy's property unless such destruction or
seizure be imperatively demanded by the necessities of war;
(xiv) Declaring abolished, suspended or inadmissible in a court of law the
rights and actions of the nationals of the hostile party;
(xv) Compelling the nationals of the hostile party to take part in the operations
of war directed against their own country, even if they were in the belligerent's service
before the commencement of the war;
(xvi) Pillaging a town or place, even when taken by assault;
(xvii) Employing poison or poisoned weapons;
(xviii) Employing asphyxiating, poisonous or other gases, and all analogous
liquids, materials or devices;
 (xix) Employing bullets which expand or flatten easily in the human body,
such as bullets with a hard envelope which does not entirely cover the core or is
pierced with incisions;
(xx) Employing weapons, projectiles and material and methods of warfare
which are of a nature to cause superfluous injury or unnecessary suffering or which
are inherently indiscriminate in violation of the international law of armed conflict,
provided that such weapons, projectiles and material and methods of warfare are the
subject of a comprehensive prohibition and are included in an annex to this Statute, by
an amendment in accordance with the relevant provisions set forth in articles 121 and
123;
(xxi) Committing outrages upon personal dignity, in particular humiliating and
degrading treatment;
(xxii) Committing rape, sexual slavery, enforced prostitution, forced
pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, or any other
form of sexual violence also constituting a grave breach of the Geneva Conventions;
(xxiii) Utilizing the presence of a civilian or other protected person to render
certain points, areas or military forces immune from military operations;
(xxiv) Intentionally directing attacks against buildings, material, medical units
and transport, and personnel using the distinctive emblems of the Geneva
Conventions in conformity with international law;
(xxv) Intentionally using starvation of civilians as a method of warfare by
depriving them of objects indispensable to their survival, including wilfully impeding
relief supplies as provided for under the Geneva Conventions;
(xxvi) Conscripting or enlisting children under the age of fifteen years into the
national armed forces or using them to participate actively in hostilities.
(c) In the case of an armed conflict not of an international character, serious violations
of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any
of the following acts committed against persons taking no active part in the hostilities,
including members of armed forces who have laid down their arms and those placed
hors de combat by sickness, wounds, detention or any other cause:
(i) Violence to life and person, in particular murder of all kinds, mutilation,
cruel treatment and torture;
(ii) Committing outrages upon personal dignity, in particular humiliating and
degrading treatment;
(iii) Taking of hostages;
(iv) The passing of sentences and the carrying out of executions without
previous judgement pronounced by a regularly constituted court, affording all judicial
guarantees which are generally recognized as indispensable.
(d) Paragraph 2 (c) applies to armed conflicts not of an international character and
thus does not apply to situations of internal disturbances and tensions, such as riots,
isolated and sporadic acts of violence or other acts of a similar nature.
(e) Other serious violations of the laws and customs applicable in armed conflicts not
of an international character, within the established framework of international law,
namely, any of the following acts:
 (i) Intentionally directing attacks against the civilian population as such or
against individual civilians not taking direct part in hostilities;
(ii) Intentionally directing attacks against buildings, material, medical units
and transport, and personnel using the distinctive emblems of the Geneva
Conventions in conformity with international law;
(iii) Intentionally directing attacks against personnel, installations, material,
units or vehicles involved in a humanitarian assistance or peacekeeping mission in
accordance with the Charter of the United Nations, as long as they are entitled to the
protection given to civilians or civilian objects under the international law of armed
conflict;
(iv) Intentionally directing attacks against buildings dedicated to religion,
education, art, science or charitable purposes, historic monuments, hospitals and
places where the sick and wounded are collected, provided they are not military
objectives;
(v) Pillaging a town or place, even when taken by assault;
(vi) Committing rape, sexual slavery, enforced prostitution, forced pregnancy,
as defined in article 7, paragraph 2 (f), enforced sterilization, and any other form of
sexual violence also constituting a serious violation of article 3 common to the four
Geneva Conventions;
(vii) Conscripting or enlisting children under the age of fifteen years into
armed forces or groups or using them to participate actively in hostilities;
(viii) Ordering the displacement of the civilian population for reasons related
to the conflict, unless the security of the civilians involved or imperative military
reasons so demand;
(ix) Killing or wounding treacherously a combatant adversary;
(x) Declaring that no quarter will be given;
(xi) Subjecting persons who are in the power of another party to the conflict to
physical mutilation or to medical or scientific experiments of any kind which are
neither justified by the medical, dental or hospital treatment of the person concerned
nor carried out in his or her interest, and which cause death to or seriously endanger
the health of such person or persons;
(xii) Destroying or seizing the property of an adversary unless such
destruction or seizure be imperatively demanded by the necessities of the conflict;
(xiii) Employing poison or poisoned weapons;
(xiv) Employing asphyxiating, poisonous or other gases, and all analogous
liquids, materials or devices;
(xv) Employing bullets which expand or flatten easily in the human body,
such as bullets with a hard envelope which does not entirely cover the core or is
pierced with incisions.
(f) Paragraph 2 (e) applies to armed conflicts not of an international character and thus
does not apply to situations of internal disturbances and tensions, such as riots,
isolated and sporadic acts of violence or other acts of a similar nature. It applies to
armed conflicts that take place in the territory of a State when there is protracted
 armed conflict between governmental authorities and organized armed groups or
between such groups.
3. Nothing in paragraph 2 (c) and (e) shall affect the responsibility of a Government to
maintain or reestablish law and order in the State or to defend the unity and territorial
integrity of the State, by all legitimate means.
4. Crime of Aggression
As adopted by the Assembly of States Parties during the Review Conference of the
Rome Statute, held in Kampala (Uganda) between 31 May and 11 June 2010, a “crime of
aggression” means the planning, preparation, initiation or execution of an act of using armed
force by a State against the sovereignty, territorial integrity or political independence of
another State.
The act of aggression includes, among other things, invasion, military occupation, and
annexation by the use of force, blockade of the ports or coasts, if it is considered being, by its
character, gravity and scale, a manifest violation of the Charter of the United Nations.
The perpetrator of the act of aggression is a person who is in a position effectively to
exercise control over or to direct the political or military action of a State.
According to Article 8 bis ICCRSt:
1. For the purpose of this Statute, “crime of aggression” means the planning,
preparation, initiation or execution, by a person in a position effectively to exercise
control over or to direct the political or military action of a State, of an act of
aggression which, by its character, gravity and scale, constitutes a manifest violation
of the Charter of the United Nations.
2. For the purpose of paragraph 1, “act of aggression” means the use of armed force by a
State against the sovereignty, territorial integrity or political independence of another
State, or in any other manner inconsistent with the Charter of the United Nations. Any
of the following acts, regardless of a declaration of war, shall, in accordance with
United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974,
qualify as an act of aggression:
(a) The invasion or attack by the armed forces of a State of the territory of another
State, or any military occupation, however temporary, resulting from such invasion or
attack, or any annexation by the use of force of the territory of another State or part
thereof;
(b) Bombardment by the armed forces of a State against the territory of another State
or the use of any weapons by a State against the territory of another State;
(c) The blockade of the ports or coasts of a State by the armed forces of another State;
(d) An attack by the armed forces of a State on the land, sea or air forces, or marine
and air fleets of another State;
(e) The use of armed forces of one State which are within the territory of another State
with the agreement of the receiving State, in contravention of the conditions provided
for in the agreement or any extension of their presence in such territory beyond the
termination of the agreement;
(f) The action of a State in allowing its territory, which it has placed at the disposal of
another State, to be used by that other State for perpetrating an act of aggression
against a third State;
 (g) The sending by or on behalf of a State of armed bands, groups, irregulars or
mercenaries, which carry out acts of armed force against another State of such gravity
as to amount to the acts listed above, or its substantial involvement therein.
5. Immunities under the ICC’s Jurisdiction
Diplomatic immunity, as well as the immunity of individuals who either used to or
still do hold an official capacity, is addressed in Article 27 ICCRSt:
Irrelevance of official capacity
1. This Statute shall apply equally to all persons without any distinction based on
official capacity. In particular, official capacity as a Head of State or Government, a
member of a Government or parliament, an elected representative or a government
official shall in no case exempt a person from criminal responsibility under this
Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.
2. Immunities or special procedural rules which may attach to the official capacity of a
person, whether under national or international law, shall not bar the Court from
exercising its jurisdiction over such a person.
It can be seen that the immunities can not bar ICC from exercising ít jurisdiction.

B. Operation
1. Referrals, analyses and investigations
- Any State Party to the Rome Statute can request the Office of the Prosecutor to carry
out an investigation. A State not party to the Statute can also accept the jurisdiction of
the ICC with respect to crimes committed in its territory or by one of its nationals, and
request the Office of the Prosecutor to carry out an investigation. The United Nations
Security Council may also refer a situation to the Court.
- The Office of the Prosecutor receives reliable information about crimes involving
nationals of a State Party or of a State which has accepted the jurisdiction of the ICC,
or about crimes committed in the territory of such a State, and concludes that there is
a reasonable basis to proceed with an investigation. Such information can be provided
by individuals, intergovernmental or non-governmental organisations, or any other
reliable sources. The Prosecution must, however, obtain permission from the Pre-Trial
Chamber judges before initiating an investigation under such circumstances.
- The Prosecutor determines whether, in his or her opinion, the Court has jurisdiction
with respect to the alleged crimes. Following a thorough analysis of the available
information, the Prosecution decides whether there is a reasonable basis to proceed
with an investigation. Thus, it must establish whether the crime of genocide, crimes
against humanity or war crimes may have been committed and, if so, whether they
were committed after 1 July 2002. The Prosecution must also ascertain whether any
national authorities are conducting a genuine investigation or trial of the alleged
perpetrators of the crimes. Lastly, it must notify the States Parties and other States
which may have jurisdiction of its intention to initiate an investigation.
- The investigation can take as long as needed to gather the required evidence. If
sufficient evidence would be collected to establish that specific individuals bear
criminal responsibility, the Prosecutor would then request Judges of a Pre-Trial
Chamber to issue either summonses to appear or warrants of arrest. The responsibility
 to enforce warrants of arrest issued by an ICC Chamber remains with States. States
Parties to the Rome Statute have a legal obligation to cooperate fully with the ICC.
Other States may be invited to cooperate with the ICC and may decide to do so on a
voluntary basis.
2. Arrests
- After the initiation of an investigation, only a Pre-Trial Chamber may, at the request
of the Prosecution, issue a warrant of arrest or summons to appear if there are
reasonable grounds to believe that the person concerned has committed a crime within
the ICC’s jurisdiction.
- When the Prosecution requests the issuance of a warrant of arrest or summons to
appear, it must provide the judges with the following information:
▪ The name of the person;
▪ A description of the crimes the person is believed to have committed;
▪ A concise summary of the facts (the acts alleged to be crimes);
▪ A summary of the evidence against the person;
▪ The reasons why the Prosecution believes that it is necessary to arrest the person.
- The judges will issue a warrant of arrest if it appears necessary to ensure that the
person will actually appear at trial, that he or she will not obstruct or endanger the
investigation or the Court’s proceedings, or to prevent the person from continuing to
commit crimes.
- The Registrar transmits requests for cooperation seeking the arrest and surrender of
the suspect to the relevant State or to other States, depending on the decision of the
judges in each case.
- Once the person is arrested and the Court is so informed, the Court ensures that the
person receives a copy of the warrant of arrest in a language which he or she fully
understands and speaks.
- The responsibility to enforce warrants of arrest in all cases remains with States. In
establishing the ICC, the States set up a system based on two pillars. The Court itself
is the judicial pillar. The operational pillar belongs to States, including the
enforcement of Court orders.
- States Parties to the Rome Statute have a legal obligation to cooperate fully with the
ICC. When a State Party fails to comply with a request to cooperate, the Court may
make a finding to that effect and refer the matter for further action to the Assembly of
States Parties.
- When the Court’s jurisdiction is triggered by the Security Council, the duty to
cooperate extends to all UN Member States, regardless of whether or not they are a
Party to the Statute. The crimes within the jurisdiction of the Court are the gravest
crimes known to humanity and as provided for by article 29 of the Statute they shall
not be subject to any statute of limitations. Warrants of arrest are lifetime orders and
therefore individuals still at large will sooner or later face the Court.
3. The rights of suspects
- Everyone is presumed innocent unless and until proven guilty before the Court. The
Prosecution must prove the guilt of the suspect and a Trial Chamber will convict
 someone only if it is satisfied that the charges have been proven beyond reasonable
doubt.
- Suspects are presumed innocent. They are present in the courtroom during the trial,
and they have a right to a public, fair and impartial hearing of their case. To this end,
a series of guarantees are set out in the Court’s legal documents, including the
following rights, to mention but a few:
▪ To be defended by the counsel (lawyer) of their choice, present evidence and
witnesses of their own and to use a language they fully understand and speak;
▪ To be informed in detail of the charges in a language which they fully understand
and speak;
▪ To have adequate time and facilities for the preparation of the defence and to
communicate freely and in confidence with counsel;
▪ To be tried without undue delay;
▪ Not to be compelled to testify or to confess guilt and to remain silent, without such
silence being a consideration in the determination of guilt or innocence;
▪ To have the Prosecution disclose to the defense evidence in its possession or control
which it believes shows or tends to show the innocence of the accused, or to mitigate
the guilt of the accused, or which may affect the credibility of the Prosecution’s
evidence
- Suspects have the right to legal assistance in any case where the interests of justice so
require and, if the suspect does not have the means to pay for it, to legal assistance
assigned by the Court.
- All detainees are entitled to apply for interim release pending trial. In the event of
rejection, the decision is periodically reviewed by the competent chamber, at least
every 120 days, and may be reviewed at any time at the request of the detained person
or the Prosecution.
- The OPCD promotes, represents and researches the rights of the defence, raises the
profile of substantive defence issues, and endeavours to achieve equality of arms for
the defence at all stages of an investigation and trial.
- The Office is independent in terms of its substantive functions, but falls within the
remit of the Registry solely for administrative purposes.
4. Confirmation of charges before trial
- The suspect’s first appearance before the Court takes place shortly after his or her
arrival in The Hague. During the first appearance, the Pre-Trial Chamber confirms the
identity of the suspect, ensures that the suspect understands the charges, confirms the
language in which the proceedings should be conducted, and sets a date to begin the
confirmation of charges hearing.
- At the confirmation of charges hearing – which is not a trial, but a pre-trial hearing –
the Prosecution must present sufficient evidence for the case to go to trial. The
suspect’s defence may object to the charges, challenge the Prosecution’s evidence and
also present evidence.
- The confirmation of charges hearing is held in the presence of the Prosecution, the
person being prosecuted, and his or her counsel, as well as the representative of the
 victims. As provided by article 61 of the Statute, the suspect can waive his or her right
to be present at this hearing
- Following a confirmation of charges hearing, a Pre-Trial Chamber may:
▪ Decline to confirm the charges; such a decision does not prevent the Prosecution
from presenting a subsequent request for confirmation of the charges on the basis of
additional evidence;
▪ Adjourn the hearing and request the Prosecution to consider providing further
evidence or conducting further investigation, or amending the charges because the
available evidence shows that a different crime was committed;
▪ Confirm the charges and commit the case for trial; upon confirmation, the
Presidency of the Court constitutes a Trial Chamber responsible for the subsequent
phase of the proceedings: the trial.
- After the confirmation of charges, the Pre-Trial Chamber commits the case for trial
before a Trial Chamber, which will conduct the subsequent phase of the proceedings:
the trial.
- Before the commencement of the trial, the judges of the Trial Chamber consider
procedural issues that may be submitted to them by the parties and hold hearings to
prepare for trial and to resolve procedural matters in order to facilitate the fair and
expeditious conduct of the proceedings.
5. The trial
- Trials take place at the seat of the Court in The Hague, unless the judges decide to
hold the trial elsewhere. This issue has been raised in several cases. The accused must
be present at his or her trial, which is held in public, unless the Chamber determines
that certain proceedings be conducted in closed session in order to protect the safety
of victims and witnesses or the confidentiality of sensitive evidentiary material.
- At trial, the Prosecution and Counsel for the Defence have the opportunity to present
their case. The Prosecution must present evidence to the Court to prove that the
accused person is guilty beyond all reasonable doubt. This evidence may be in the
form of documents, other tangible objects, or witness statements. The Prosecution
must also disclose to the accused any evidence which may show that he or she is
innocent.
- The Prosecution presents its case first and calls witnesses to testify. When the
Prosecution has finished examining each witness, the Counsel for the Defence is
given the opportunity to also examine the witness. Once the Prosecution has presented
all its evidence, it is the turn of the accused, with the assistance of his or her counsel,
to present his or her defence.
- All parties to the trial may present evidence relevant to the case. Everyone is
presumed innocent unless and until proven guilty according to law. The Prosecution
has the burden of proving that the accused is guilty beyond all reasonable doubt. The
accused has the right to examine the Prosecution’s witnesses, and to call and examine
witnesses on his or her own behalf under the same conditions as the Prosecution’s
witnesses.
6. Judgement and sentence
 - Once the parties have presented their evidence, the Prosecution and the Defence are
invited to make their closing statements. The Defence always has the opportunity to
speak last. The judges may order reparations to victims, including restitution,
compensation and rehabilitation. To this end, they may make an order directly against
a convicted person.
- After hearing the victims and the witnesses called to testify by the Prosecution and the
Defence and considering the evidence, the judges decide whether the accused person
is guilty or not guilty.
- The sentence is pronounced in public and, wherever possible, in the presence of the
accused, and victims or their legal representatives, if they have taken part in the
proceedings.
- The judges may impose a prison sentence, to which may be added a fine or forfeiture
of the proceeds, property and assets derived directly or indirectly from the crime
committed. The Court cannot impose a death sentence. The maximum sentence is 30
years. However, in extreme cases, the Court may impose a term of life imprisonment.
7. Appeals and revision
- Any party may appeal the decisions of a Pre-Trial or Trial Chamber. The Prosecution
may appeal against a conviction or acquittal on any of the following grounds:
procedural error, error of fact or error of law.
- The convicted person or the Prosecution may also appeal on any other ground that
affects the fairness or reliability of the proceedings or the decision, in particular on the
ground of disproportion between the sentence and the crime.
- The legal representatives of the victims, the convicted person, or a bona fide owner of
property adversely affected by an order for reparations to the victims may also appeal
against such an order.
- The Appeals Chamber may reverse or amend the decision or conviction or order a
new trial before a different Trial Chamber.
- The convicted person or the Prosecution may apply to the Appeals Chamber to revise
a final judgement of conviction or sentence where:
▪ New and important evidence has been discovered;
▪ It has been newly discovered that decisive evidence, taken into account at trial and
upon which the conviction depends, was false, forged or falsified;
▪ One or more of the judges has committed an act of serious misconduct or serious
breach of duty of sufficient gravity to justify the removal of that judge or those judges
from office under the Rome Statute.
- Anyone who has been the victim of unlawful arrest or detention has an enforceable
right to compensation. The Court can award compensation if a grave and manifest
miscarriage of justice is conclusively shown.

III. Cases: The case of Sudan

- Sudan is not a State Party to the Rome Statute. However, since the United Nations
Security Council (UNSC) referred the situation in Darfur to the ICC in Resolution
1593 (2005) on 31 March 2005, the ICC may exercise its jurisdiction over crimes
 listed in the Rome Statute committed on the territory of Darfur, Sudan from 1 July
2002 onwards.
- The ICC investigations regarding Darfur focus on allegations of genocide, war crimes
and crimes against humanity committed in Darfur, Sudan, since 1 July 2002. The UN
Secretary-General established the Commission "to investigate reports of violations of
international humanitarian law and human rights law in Darfur by all parties, to
determine also whether or not acts of genocide have occurred, and to identify the
perpetrators of such violations with a view to ensuring that those responsible are held
accountable." The Commission took as a starting point two facts: "First, according to
United Nations estimates there are 1.65 million internally displaced persons in Darfur,
and more than 200,000 refugees from Darfur in neighbouring Chad. Secondly, there
has been large-scale destruction of villages throughout the three States of Darfur."
- The ICC investigation, which opened in June 2005, has produced several cases with
suspects ranging from Sudanese Government officials, Militia/Janjaweed leaders, and
leaders of the Resistance Front, and has involved charges that include the following
crimes:
● genocide: genocide by killing; genocide by causing serious bodily or mental harm;
and genocide by deliberately inflicting on each target group conditions of life
calculated to bring about the group's physical destruction;
● war crimes: murder; attacks against the civilian population; destruction of property;
rape; pillaging; and outrage upon personal dignity; violence to life and person;
intentionally directing attacks against personnel, installations, material, units or
vehicles involved in a peacekeeping mission; and
● crimes against humanity: murder; persecution; forcible transfer of population; rape;
inhumane acts; imprisonment or severe deprivation of liberty; torture; extermination;
and torture.

The situation in Darfur was the first to be referred to the ICC by the United Nations Security
Council, and the first ICC investigation on the territory of a non-State Party to the Rome
Statute. It was the first ICC investigation dealing with allegations of the crime of genocide.
Former Sudan's President Omar Al Bashir is the first sitting President to be wanted by the
ICC, and the first person to be charged by the ICC for the crime of genocide. Neither of the
two warrants of arrest against him have been enforced, and he is not in the Court's custody:

- Former President of Sudan Omar Hassan Ahmad Al Bashir was charged with five
counts of crimes against humanity: murder, extermination, forcible transfer, torture,
and rape; two counts of war crimes: intentionally directing attacks against a civilian
population as such or against individual civilians not taking part in hostilities, and
pillaging; three counts of genocide: by killing, by causing serious bodily or mental
harm, and by deliberately inflicting on each target group conditions of life calculated
to bring about the group's physical destruction, allegedly committed at least between
2003 and 2008 in Darfur, Sudan.
- The first warrant for arrest for Omar Hassan Ahmad Al Bashir was issued on 4 March
2009, the second on 12 July 2010. The suspect is still at large. Until Omar Al Bashir
 is arrested and transferred to the seat of the Court in The Hague, the case will remain
in the Pre-Trial stage. The ICC does not try individuals unless they are present in the
courtroom.

REFERENCE

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Government.nl. (n.d.). Retrieved November 27, 2023, from

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4. Tsilonis, V. (2019). The Jurisdiction of the International Criminal Court. Springer

International Publishing. https://doi.org/10.1007/978-3-030-21526-2