International Criminal Law and Justice lecture handout, 2023

International Criminal Court

Dr Alexander Orakhelashvili

Initial proposals to create ICC: ILC’s efforts in early 1990s and the opt-in model
US opposition
Rome Conference: ICC Statute 1998

Preamble of the Statute: important statement of the object and purpose, of essence of
criminal prosecution; guidance to treaty interpretation: it does not as such create rights
and obligations, but can (a) state what obligations States otherwise have under general
international law; and (b) provide for presumptions for the way specific obligations
under the Statute should be construed.
Structure: Pre-trial, trial and appeal chambers

The question of how far the treaty regime obliges the relevant actors to avoid inaction
in relation to prosecution of the relevant crimes is at the heart of the jurisdictional
arrangements as specified in Articles 12 to 18 ICC Statute.

Article 12 of the Statute, showing that this instrument does not adopt the universal
jurisdiction approach in relation to the ICC.

Article 12
A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect
to the crimes referred to in article 5.
2. In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of
the following States are Parties to this Statute or have accepted the jurisdiction of the Court in
accordance with paragraph 3:
(a) The State on the territory of which the conduct in question occurred or, if the crime was committed
on board a vessel or aircraft, the State of registration of that vessel or aircraft;
(b) The State of which the person accused of the crime is a national.
3. If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that
State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court
with respect to the crime in question. The accepting State shall cooperate with the Court without any
delay or exception in accordance with Part 9.

Jurisdiction can be exercised: via State party referral; UNSC referral; prosecutor
acting propriu motu.

Security Council referral; Article 39 UNC, existence of a “threat to the peace”, and
conditions of vires
2004 UN-ICC relationship agreement, Article 2(3): “The United Nations and the
Court respect each other’s status and mandate.”
The Darfur situation was referred to ICC by the SC. The Ugandan situation has been
referred to it by the Prosecutor.
Security Council resolution 1593 (2005) referring the Sudan situation to the Court
The issue of the legality of paragraph 6 of that resolution which excludes the
prosecution before the Court of the personnel or officials from contributing States
outside Sudan which are not parties to the Statute.
In relation to referrals, the SC referred case must be the one that falls within the
jurisdiction of the Court. The Court would be the ultimate judge of its competence in
this field and can review the decision of the Council if it goes against the Statute; not
just competence de la competence, but also the mutual respect obligation under the
Relationship agreement.
That would be the case if ICTY approach is adopted; just as SC was unable to
establish a tribunal on political basis, so would it be unable to require ICC to do
anything on a political basis.
Two legs of vires: UNC and ICC Statute

Just because non-party nationals can be tried before the Court, the Statute has
provided for a SC deferral request.
Deferrals: Article 16 Statute and SCRs 1422 and 1487
The AU Peace and Security Council repeatedly stated its “strong conviction that the
search for justice should be pursued in a way that does not impede or jeopardize efforts
aimed at promoting lasting peace and reiterated AU’s concern with the misuse of
indictments against African leaders. ”1
SCR 1422 preamble:
“Determining that operations established or authorized by the United Nations Security Council are
deployed to maintain or restore international peace and security,
Determining further that it is in the interests of international peace and security to facilitate Member
States’ ability to contribute to operations established or authorized by the United Nations Security
Council”
Reactions of States to these resolutions outlined here, pp339-342, pdf available

Submission was made in Abd Al-Rahman case, No. ICC-02/05-01/20, 17 May

2021that SCR 2559(2020) “would have also resulted in invalidating Resolution 1593,
in particular by depriving the Court of the logistical and security support essential to
the conduct of its activities in Sudan”.
The Court said that 2559 did not invalidate 1593, instead it expressly referred to iy;
moreover, “specifically in respect of UN Security Council referrals, the situation
where the UNSC might consider it desirable to cancel the effects of a previous referral
has been considered by the drafters of the Statute, and ruled upon in such a way as to
make the Council’s manoeuvring space extremely limited. Once it has referred a
situation, the UN Security Council is not allowed to simply withdraw its own act,
even if it were willing to do so. Should it consider that an existing referral creates a
risk to peace and security, the only possible action for the Council is to try and
mitigate its effects on a temporary basis, by requesting a deferral ‘for a period of 12
months’, in compliance with the restrictive procedure set up in article 16 of the
Statute: the UNSC would have to adopt a resolution under Chapter VII of the United
Nations Charter,” para. 34
“the contention that a subsequent UNSC resolution relating to administrative matters
pertaining to the United Nations field missions in Darfur might have an impact or
otherwise affect a previous UNSC referral to the Court appears deprived of any legal
basis and therefore frivolous.” para. 35
On appeal from there, No. ICC-02/05-01/20 OA8, 1 November 2021, para. 57, the
Court did see any explanation as to how 1593 referral would be voided, and hence
there was no error of law.
1
Communiqué of the 142nd Meeting of the Peace and Security Council¸ PSC/MIN/Comm(CXLII), 21
July 2008, para. 4

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Article 15(1) Statute: “The Prosecutor may initiate investigations proprio motu on the
basis of information on crimes within the jurisdiction of the Court”

Complementarity: the basic idea and the content of Article 17: unwillingness to
prosecute
In order to “determine unwillingness in a particular case, the Court shall consider, having regard to
the principles of due process recognized by international law, whether one or more of the following
exist, as applicable:
(a) The proceedings were or are being undertaken or the national decision was made for the purpose of
shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the
Court referred to in article 5;
(b) There has been an unjustified delay in the proceedings which in the circumstances is inconsistent
with an intent to bring the person concerned to justice;
(c) The proceedings were not or are not being conducted independently or impartially, and they were or
are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the
person concerned to justice.
There has to be prosecution; no inquiry and truth commission sufficient to make the
case inadmissible; 17(3) refers to national judicial system; and preamble is clear that
there is duty to exercise criminal jurisdiction.

The problem of amnesty

Article 17(3): inability

“Article 17 (1) (a) of the Statute covers a scenario where, at the time of the Court's
determination of the admissibility of the case, investigation or prosecution is taking
place in a State having jurisdiction. … Article 17 (1) (b) of the Statute covers a
similar scenario where a State having jurisdiction has investigated a case, but "has
decided not to prosecute the person concerned" (emphasis added).” Katanga &
Ngudjolo, 2009, para 75

The Appeals Chamber was “not persuaded by the interpretation of article 17 (1) of the
Statute proposed by the Appellant, according to which unwillingness and inability
also have to be considered in case of inaction. Such an interpretation is not only
irreconcilable with the wording of the provision, but is also in conflict with a
purposive interpretation of the Statute.” Because aim of the Rome Statute is to avoid
impunity for crimes. Para 79
Remember VCLT interpretation methods dealt with in previous lectures

“This object and purpose of the Statute would come to naught were the said
interpretation of article 17 (1) of the Statute as proposed by the Appellant to prevail. It
would result in a situation where, despite the inaction of a State, a case would be
inadmissible before the Court, unless that State is unwilling or unable to open
investigations. The Court would be unable to exercise its jurisdiction over a case as
long as the State is theoretically willing and able to investigate and to prosecute the
case, even though that State has no intention of doing so.”

“If a State challenges the admissibility of a case, it must provide the Court with
evidence with a sufficient degree of specificity and probative value that demonstrates
that it is indeed investigating the case. It is not sufficient merely to assert that
investigations are ongoing.”

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Muhtaura, appeal decision 30 August 2011, No. ICC-01/09-02/11 O A, 30 August
2011, para. 61
Prosecutor v Gaddafi, No. ICC-01/11-01/11, 31 May 2013
Prosecutor v Gaddafi, No. ICC-01/11-01/11, 5 April 2019, para. 48

Sameness of the issue dealt with by the ICC and national courts

Article 53 Statute and prosecutorial discretion

The Prosecutor is required to “Tak[e] into account the gravity of the crime and the interests of
victims, there are nonetheless substantial reasons to believe that an investigation would not serve the
interests of justice”

The 2007 Policy paper of the prosecutor does not illuminate the essence of this
problem, not provide for examples.

Human Rights Watch position: “the OTP should adopt a strict construction of the
term "interests of justice" in order to adhere to the context of the Rome Statute, its
object and purpose, and to the requirements of international law.”

US Government threatened reprisals against ICC officials should ICC proceed with
investigation with regard to Afghanistan.

Rather importantly, ICC policy paper states that

“the interests of justice provision should not be considered a conflict management tool
requiring the Prosecutor to assume the role of a mediator in political negotiations:
such an outcome would run contrary to the explicit judicial functions of the Office
and the Court as a whole.”

Case related to case related to Situation in Afghanistan

Article 21, applicable law:

“1. The Court shall apply: (a) In the first place, this Statute, Elements of Crimes and
its Rules of Procedure and Evidence; (b) In the second place, where appropriate,
applicable treaties and the principles and rules of international law, including the
established principles of the international law of armed conflict; (c) Failing that,
general principles of law derived by the Court from national laws of legal systems of
the world including, as appropriate, the national laws of States that would normally
exercise jurisdiction over the crime, provided that those principles are not inconsistent
with this Statute and with international law and internationally recognized norms and
standards. 2. The Court may apply principles and rules of law as interpreted in its
previous decisions. 3. The application and interpretation of law pursuant to this article
must be consistent with internationally recognized human rights, and be without any
adverse distinction founded on grounds such as gender as defined in article 7,
paragraph 3, age, race, colour, language, religion or belief, political or other opinion,
national, ethnic or social origin, wealth, birth or other status.”

Arrest powers, Article 58:

“Article 58 Issuance by the Pre-Trial Chamber of a warrant of arrest or a summons to
appear 1. At any time after the initiation of an investigation, the Pre-Trial Chamber
shall, on the application of the Prosecutor, issue a warrant of arrest of a person if,

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having examined the application and the evidence or other information submitted by
the Prosecutor, it is satisfied that: (a) There are reasonable grounds to believe that the
person has committed a crime within the jurisdiction of the Court; and (b) The arrest
of the person appears necessary: (i) To ensure the person's appearance at trial; (ii) To
ensure that the person does not obstruct or endanger the investigation or the court
proceedings; or (iii) Where applicable, to prevent the person from continuing with the
commission of that crime or a related crime which is within the jurisdiction of the
Court and which arises out of the same circumstances.”

Article 89(1), surrender of persons to the Court: “States Parties shall, in accordance
with the provisions of this Part and the procedure under their national law, comply
with requests for arrest and surrender.”
Article 90, competing requests, dealing with the aspects of complementarity;
contingent on the Court’s determination under Article 18 and 19 of the Statute.
Article 93, non-exhaustive listing of forms of cooperation; remember Article 29 ICTY
Statute and Blaskic

Article 98 and evasion of the ICC’s jurisdiction

After the adoption of the Statute of the International Criminal Court at the 1998 Rome
Conference, the United States which refused to become party to it proceeded to
conclude agreements with States-parties to the Statute under its Article 98(2).
According to this provision, “The Court may not proceed with a request for surrender
[of the accused to the court] which would require the requested State to act
inconsistently with its obligations under international agreements pursuant to which
the consent of a sending State is required to surrender a person of that State to the
Court, unless the Court can first obtain the cooperation of the sending State for the
giving of consent for the surrender.”

Immunities and official capacity

Officials’ immunity under general international law: dependence on State

immunity and correlative scope, overviewed here. Pdf file also available.

Article 27 (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.”

Relevant cases: Arrest Warrant before the ICJ

Taylor Immunity case SCSL

The ICC’s own take: decision regarding Al-Bashir, delivered on 6 May 2019

Appraisal of ICC’s activities, backlash and withdrawals

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Questions

1. How was the ICC set up?

2. What is ICC’s jurisdiction?
3. How is the admissibility of cases regulated?
4. Is prosecutorial discretion used in the correct manner?
5. What is the Court’s relationship with the UN Security Council?
6. Are Article 98 Agreements compatible with the ICC Statute?
7. In which way are States required to cooperate with the Court?
8. Does the State immunity apply to proceedings before the ICC?
9. How has ICC been appraised and evaluated? What is the African Union’s
position?

Readings

Cryer et al, Chapters 8 and 20

A Orakhelashvili, Akehurst’s Modern Introduction to International Law 9th ed., 2022,
Chapter 19, and the companion website entry for Chapter 19
ICC Statute
Policy Paper on Prosecutorial Discretion 2007
The Situation in Afghanistan report
Al-Bashir case
Security Council resolutions 1422, 1487 and 1593