Recent Developments at the International Criminal Court

The International Criminal Court was established by the Rome Statute, which was adopted in 1998 and entered into force in 2002. It is the world’s first permanent international court dedicated to prosecuting individuals for the most serious crimes of international concern. It is a court of last resort – complementing, but not replacing, the criminal courts of states.

Focus and Jurisdiction of the Court

According to Article 1 of the Rome Statute, the International Criminal Court is the world’s first permanent international court set up to prosecute individuals for “the most serious crimes of international concern”. In this respect, there are a number of important principles that help to “limit” the Court’s focus to these most serious crimes, but also in a way that gives deference to national jurisdictions over these crimes too.

In this context, there are three main principles that underpin the Court’s focus and jurisdiction:

• Complementarity
  • The idea that the Court’s jurisdiction should complement the national jurisdiction of states.
• Gravity
  • The principle that situations must meet a gravity threshold before they should be considered for investigation.
• Interests of Justice
  • The principle that investigations should not go forward if they are not in the interests of justice.

Routes to the Court

There are three ways a case or situation can come before the court:

• An initiation of an investigation by the Prosecutor (proprio motu);
• A referral by a State Party; and
• A referral by the United Nations Security Council.

Each of these routes requires the Prosecutor to take into account different factors and sources of information when considering whether to initiate an investigation.

The Core Crimes

The Rome Statute brings within the Court’s jurisdiction four core crimes:

• Genocide
• Crimes Against Humanity
• War Crimes
• Aggression

While the jurisdiction of the ourt over genocide, crimes against humanity, and war crimes have been reasonably well established, the crime of aggression has only recently been defined by the Court following a review conference in 2010. The Court’s jurisdiction over aggression was activated in July 2018.

Recent work of the Court

In the trials that have proceeded up to November 2020, the ICC has issued a number of convictions as well as some acquittals. There have also been cases where the charges were dropped by the Court.

More recently, some situations have caused controversy for the Court: including when the Court seemingly extended its jurisdiction to non-State parties by permitting an investigation into the situation on Bangladesh / Myanmar.

Relations with states

There have been tensions between the Court and certain states. For example, a number of African states have threatened withdrawal from the Court in recent years, while the US has imposed sanctions against ICC officials over its decision to open an investigation into possible crimes committed during the war in Afghanistan. This investigation would also cover any possible crimes committed by US armed forces in Afghanistan.

The UK’s relationship with the Court

In general, the UK Government is supportive of the Court’s work, is a State Party to the Rome Statute, and also offers both practical and financial support to the ICC while campaigning for the election of a UK judge to ICC Judiciary. Recently, the Government has indicated that it believes “that positive reform is required for the ICC to fulfil its mandate as intended under the Rome Statute”.

The Court’s Prosecutor recently closed an examination into whether it can investigate alleged crimes by UK nationals in Iraq during the Iraq war. The Final Report considers the UK’s ongoing internal investigations to be genuine, but the Prosecutor did express some concerns.

There have also been some debates as to whether the UK Government’s Overseas Operations Bill could mean that UK nationals are more likely to face investigation by the ICC owing to some of the time restrictions that proposed legislation places upon crimes that also fall within the Court’s jurisdiction.

This Briefing Paper was updated on 15 January 2021 to include the ICC Prosecutor’s decision to close its examination of UK war crimes in Iraq, and its concerns over the Overseas Operations Bill currently before Parliament.