Frequently Asked Questions about the ICC

Who can be tried and for what crimes by the ICC?

• Crimes against humanity -- a course of conduct involving the multiple commission of one or more acts such as, for example, murder, extermination, enslavement, the forcible transfer of a population, torture, or rape. This course of conduct must be part of a) a widespread or systematic attack against any civilian population and b) a State or organizational policy to commit such attack (for example, the ethnic cleansing of Bosnia and Herzegovina and of Kosovo in the 1990's included crimes against humanity).
  
  
• Genocide -- intentionally committing an "act of genocide" in order to destroy, in whole or in part, a national, ethnical, racial or religious group. Acts of genocide include killing members of the group, seriously wounding members of the group, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, imposing measures to prevent births, and forcibly transferring children of the group to another group (for example, the mass murder of Jews during the Holocaust and of Tutsis in Rwanda in 1994).
  
  
• Serious war crimes -- crimes in violation of well-accepted laws of war, in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes (for example, the targeting of civilians in Sarajevo by snipers during the Bosnian conflict).

Are there any limits on ICC jurisdiction?

The ICC can only exercise jurisdiction over crimes occurring after July 1, 2002, the official start-up date of the Court.

The Court also does not have universal jurisdiction. The precondition to the exercise of ICC jurisdiction over a crime is that the crime must have been committed on the territory or by a citizen of a state that has either ratified the Court's Statute or has specially consented to its jurisdiction over the situation in which the crime occurred. If that precondition is satisfied, then a state party to the ICC Statute or the ICC Prosecutor (with the approval of the judges) can refer to the ICC for investigation a situation in which ICC crimes are suspected of having been committed. If the U.N. Security Council refers a situation to the ICC using the Council's enforcement authority under the UN Charter, then that precondition would not need to be fulfilled.

The ICC can only look into situations that are "the most serious crimes of concern to the international community as a whole." In general, this means that the ICC will only take a case if multiple or very massive atrocities have been deliberately planned.

The ICC is designed as a court of last resort. The Court will defer to national proceedings -- whether or not they lead to prosecution -- except if it concludes that the state in question is incapable of acting because, for example, it has no functioning judicial system, or is unwilling to act because, for example, it has acted in bad faith.

Who created the ICC?

The ICC Statute was adopted in Rome in 1998 by 120 countries after several years of negotiations at the United Nations. The ICC Statute came into force on July 1, 2002, following the required 60th ratification. 139 countries ultimately signed the ICC Statute, and over 100 states had ratified or acceded to it.

Support for the ICC has been led by a coalition of America's friends and allies, including all members of the European Union and all members of NATO except the US and Turkey.

The ICC is supported by many states that have recently experienced severe crises as a result of ongoing impunity or attempts to try human rights violators within their domestic systems, including Argentina, Cambodia, Colombia, Croatia, the Democratic Republic of the Congo, Nigeria, Paraguay, Peru, Sierra Leone, South Africa, and Uganda.

The US was involved with the ICC negotiations until early 2002 and made extensive contributions to the ICC Statute and its indispensable supplemental documents. These include provisions giving strong deference to national courts, an important role for the Security Council, due process rights drawn from the US Bill of Rights, and the definitions and elements of the ICC crimes.

Is the ICC part of the United Nations?

The ICC is not a UN body; it is not under the jurisdiction of the General Assembly or of the Secretary-General. It is an independent international court with its own legal capacity, created and governed by its own treaty. It will not be administered or paid for through the UN. It is financed by, and accountable to, only those states that have chosen to ratify the ICC Statute. It is not located at UN headquarters, but at The Hague, the capital of the Netherlands.

The Court is linked to the UN in at least one crucial respect: the Security Council has the authority to refer investigations to it, or to temporarily suspend them. If the UN Security Council refers a situation to the ICC, then the UN membership as a whole may be assessed some portion of the Court's expenses relating to that specific investigation.

• Achieve justice for the victims and for society and help create respect for the rule of law;
• Counter attempts to blame nations or ethnic, religious, or other groups as a whole for the crimes of individuals;
• Isolate and incapacitate criminal leaders so that they can be removed from active political participation;
• Acknowledge and condemn the suffering of victims and survivors;
• Establish an accurate historical record; and
• Act as a deterrent to future arch criminals.

These benefits can be advanced by the mere existence of the ICC. States will be encouraged to investigate and prosecute atrocity crimes because, if they do not, the ICC may find it necessary to pursue its own investigations and prosecutions.

• Rome Statute, Date of Adoption: 7/17/1998, Date of Entry in Force: 7/1/2002 (.pdf)
• Regulations of the Court, Date of Adoption: 5/26/2004; Date of Entry in Force: 5/26/2004 (.pdf)
• Rules of Procedure and Evidence, Date of Adoption: 9/9/2002; Date of Entry in Force: 09/09/2002 (.pdf)
• Elements of Crimes, Date of Adoption: 9/9/2002; Date of Entry in Force: 9/9/2002 (.pdf)
• Agreement on the Privileges and Immunities of the ICC, Date of Adoption: 9/9/2002, Date of Entry in Force: 7/22/2004 (.pdf)
• Financial Regulations and Rules, Date of Adoption: 9/9/2002 (.pdf)
• Staff Regulations, Date of Adoption: 9/12/2003, Date of Entry in Force: 9/12/2003 (.pdf)
• Code of Judicial Ethics, Date of Adoption: 3/9/2005, Date of Entry in Force: 3/9/2005 (.pdf)
• Negotiated Relationship Agreement between the ICC and the UN, Date of Adoption: 10/4/2004, Date of Entry in Force: 10/4/2004 (.pdf)
  

Why should the US support the ICC?

The ICC is the legacy of more than 50 years of work, from the Nuremberg and Tokyo trials after World War II to the current Hague, Arusha, and Freetown international criminal tribunals, spearheaded by the US to promote justice through law.

By turning its back on the ICC, the US has forfeited to others a critical opportunity for international leadership and influence in shaping the evolution of the laws of war and international humanitarian law — a development that potentially puts US servicemembers at grave risk of being held accountable to legal standards the US has not participated in creating.

US contributions to the drafting of the ICC Statute ensure the fair and effective operation of the Court. Continued US involvement and cooperation with the Court would greatly enhance the prospects that remaining US concerns about the Court would be addressed with careful consideration as the Court begins operations.

If the US decided to cooperate with the Court it would be in a better position to protect itself against political attacks than if the US undermines its influence and credibility through active hostility or arbitrary refusals to cooperate with the ICC.

The US can better protect its interests by continuing to help shape the ICC as a strong and fair institution than by attacking it or complaining about it from the sidelines. Anti-ICC legislation and policies can prevent US cooperation with the Court and indeed create a sanctuary for war criminals in the United States, but they cannot prevent action by the ICC. By being hostile to the Court, the United States forfeits credibility, an opportunity for leadership, and respect as a champion of human rights and the rule of law.

The Court protects American service members by pressing foreign military powers to uphold the same standard of conduct the US has always imposed on itself — standards that protect American service members in battle.

By joining the Court, the US would be able to take advantage of the many benefits for member states. For example, the US could choose not to accept the Court's authority to try Americans for war crimes for seven years. During that period, the US could observe whether the Court acts inappropriately, and, if it does, the US could withdraw from the Court. US membership also would permit the US to "opt out" of being subject to any future actionable crime of aggression — an opportunity that profoundly affects US national security -- and would enable the US to place a judge on the Court and deeply influence the Court's overall administration.

The ICC could help promote US foreign policy interests. For example, if the Court indicted Saddam Hussein and issued an arrest warrant against him the US could have more easily built a coalition to act against the Iraqi regime. The ICC also could greatly support and promote future US efforts to arrest and prosecute international terrorists charged with heinous large-scale attacks against US targets.