The International Criminal Court (ICC or ICCt) is an intergovernmental organization and international tribunal that sits in The Hague, Netherlands. The ICC is the first and only permanent international court with jurisdiction to prosecute individuals for the international crimes of genocide, crimes against humanity, war crimes and the crime of aggression. It is intended to complement existing national judicial systems, and it may, therefore, exercise its jurisdiction only when national courts are unwilling or unable to prosecute criminals. The ICC lacks universal territorial jurisdiction and may only investigate and prosecute crimes committed within member states, crimes committed by nationals of member states, or crimes in situations referred to the Court by the United Nations Security Council.
The ICC began operations on 1 July 2002, upon the entry into force of the Rome Statute, a multilateral treaty that serves as the court's foundational and governing document. States which become party to the Rome Statute become members of the ICC, serving on the Assembly of States Parties, which administers the court. As of December 2020, there are 123 ICC member states; 42 states have neither signed nor become parties to the Rome Statute.
The ICC has four principal organs: the Presidency, the Judicial Divisions, the Office of the Prosecutor and the Registry. The President is the most senior judge chosen by his or her peers in the Judicial Division, which hears cases before the Court. The Office of the Prosecutor is headed by the Prosecutor who investigates crimes and initiates criminal proceedings before the Judicial Division. The Registry is headed by the Registrar and is charged with managing all the administrative functions of the ICC, including the headquarters, detention unit, and public defense office.
The Office of the Prosecutor has opened twelve official investigations and is also conducting an additional nine preliminary examinations. Thus far, 45 individuals have been indicted in the ICC, including Ugandan rebel leader Joseph Kony, former President Omar al-Bashir of Sudan, President Uhuru Kenyatta of Kenya, Libyan revolutionary Muammar Gaddafi, President Laurent Gbagbo of Ivory Coast and former Vice President Jean-Pierre Bemba of the Democratic Republic of the Congo. The ICC has faced a number of criticisms from states and society, including objections about its jurisdiction, accusations of bias, questioning of the fairness of its case-selection and trial procedures, as well as doubts about its effectiveness.
History
The establishment of an international tribunal to judge political leaders accused of international crimes was first proposed during the Paris Peace Conference in 1919 following the First World War by the Commission of Responsibilities. The issue was addressed again at a conference held in Geneva under the auspices of the League of Nations in 1937, which resulted in the conclusion of the first convention stipulating the establishment of a permanent international court to try acts of international terrorism. The convention was signed by 13 states, but none ratified it and the convention never entered into force.
Following the Second World War, the allied powers established two ad hoc tribunals to prosecute Axis leaders accused of war crimes. The International Military Tribunal, which sat in Nuremberg, prosecuted German leaders while the International Military Tribunal for the Far East in Tokyo prosecuted Japanese leaders. In 1948 the United Nations General Assembly first recognized the need for a permanent international court to deal with atrocities of the kind prosecuted after the Second World War. At the request of the General Assembly, the International Law Commission (ILC) drafted two statutes by the early 1950s but these were shelved during the Cold War, which made the establishment of an international criminal court politically unrealistic.
Benjamin B. Ferencz, an investigator of Nazi war crimes after the Second World War, and the Chief Prosecutor for the United States Army at the Einsatzgruppen Trial, became a vocal advocate of the establishment of international rule of law and of an international criminal court. In his first book published in 1975, entitled Defining International Aggression: The Search for World Peace, he advocated for the establishment of such a court. A second major advocate was Robert Kurt Woetzel, who co-edited Toward a Feasible International Criminal Court in 1970 and created the Foundation for the Establishment of an International Criminal Court in 1971.
Towards a permanent international criminal court
In June 1989, the Prime Minister of Trinidad and Tobago, A. N. R. Robinson, revived the idea of a permanent international criminal court by proposing the creation of such a court to deal with the illegal drug trade. Following Trinidad and Tobago's proposal, the General Assembly tasked the ILC with once again drafting a statute for a permanent court. While work began on the draft, the United Nations Security Council established two ad hoc tribunals in the early 1990s: The International Criminal Tribunal for the former Yugoslavia, created in 1993 in response to large-scale atrocities committed by armed forces during Yugoslav Wars, and the International Criminal Tribunal for Rwanda, created in 1994 following the Rwandan genocide. The creation of these tribunals further highlighted to many the need for a permanent international criminal court.
In 1994, the ILC presented its final draft statute for the International Criminal Court to the General Assembly and recommended that a conference be convened to negotiate a treaty that would serve as the Court's statute. To consider major substantive issues in the draft statute, the General Assembly established the Ad Hoc Committee on the Establishment of an International Criminal Court, which met twice in 1995. After considering the Committee's report, the General Assembly created the Preparatory Committee on the Establishment of the ICC to prepare a consolidated draft text. From 1996 to 1998, six sessions of the Preparatory Committee were held at the United Nations headquarters in New York City, during which NGOs provided input and attended meetings under the umbrella organization of the Coalition for the International Criminal Court (CICC). In January 1998, the Bureau and coordinators of the Preparatory Committee convened for an Inter-Sessional meeting in Zutphen in the Netherlands to technically consolidate and restructure the draft articles into a draft.
Finally, the General Assembly convened a conference in Rome in June 1998, with the aim of finalizing the treaty to serve as the Court's statute. On 17 July 1998, the Rome Statute of the International Criminal Court was adopted by a vote of 120 to seven, with 21 countries abstaining. The seven countries that voted against the treaty were China, Iraq, Israel, Libya, Qatar, the United States, and Yemen. Israel's opposition to the treaty stemmed from the inclusion in the list of war crimes "the action of transferring population into occupied territory".
Following 60 ratifications, the Rome Statute entered into force on 1 July 2002 and the International Criminal Court was formally established. The first bench of 18 judges was elected by the Assembly of States Parties in February 2003. They were sworn in at the inaugural session of the Court on 11 March 2003. The Court issued its first arrest warrants on 8 July 2005, and the first pre-trial hearings were held in 2006. The Court issued its first judgment in 2012 when it found Congolese rebel leader Thomas Lubanga Dyilo guilty of war crimes related to using child soldiers.
In 2010, the states parties of the Rome Statute held the first Review Conference of the Rome Statute of the International Criminal Court in Kampala, Uganda. The Review Conference led to the adoption of two resolutions that amended the crimes under the jurisdiction of the Court. Resolution 5 amended Article 8 on war crimes, criminalizing the use of certain kinds of weapons in non-international conflicts whose use was already forbidden in international conflicts. Resolution 6, pursuant to Article 5(2) of the Statute, provided the definition and a procedure for jurisdiction over the crime of aggression.
Opposition to the Court
During the administration of Barack Obama, US opposition to the ICC evolved to "positive engagement", although no effort was made to ratify the Rome Statute. The administration of Donald Trump was considerably more hostile to the Court, threatening prosecutions and financial sanctions on ICC judges and staff in US courts as well as imposing visa bans in response to any investigation against American nationals in connection to alleged crimes and atrocities perpetrated by the US in Afghanistan. The threat included sanctions against any of over 120 countries which have ratified the Court for cooperating in the process. Following the imposition of sanctions on 11 June 2020 by the Trump administration, the court branded the sanctions an "attack against the interests of victims of atrocity crimes" and an "unacceptable attempt to interfere with the rule of law". The UN also regretted the effect sanctions may have on trials and investigations underway, saying its independence must be protected.
In October 2016, after repeated claims that the court was biased against African states, Burundi, South Africa and the Gambia announced their withdrawals from the Rome Statute. However, following Gambia's presidential election later that year, which ended the long rule of Yahya Jammeh, Gambia rescinded its withdrawal notification. A decision by the High Court of South Africa in early 2017 ruled that the attempted withdrawal was unconstitutional, as it had not been agreed by Parliament, prompting the South African government to inform the UN that it was revoking its decision to withdraw.
In November 2017, Fatou Bensouda advised the court to consider seeking charges for human rights abuses committed during the War in Afghanistan such as alleged rapes and tortures by the United States Armed Forces and the Central Intelligence Agency, crime against humanity committed by the Taliban, and war crimes committed by the Afghan National Security Forces. John Bolton, National Security Advisor of the United States, stated that ICC Court had no jurisdiction over the US, which did not ratify the Rome Statute. In 2020, overturning the previous decision not to proceed, senior judges at the ICC authorized an investigation into the alleged war crimes in Afghanistan. However, in June 2020, the decision to proceed led the Trump administration to power an economic and legal attack on the court. “The US government has reason to doubt the honesty of the ICC. The Department of Justice has received substantial credible information that raises serious concerns about a long history of financial corruption and malfeasance at the highest levels of the office of the prosecutor,” Attorney General William Barr said. The ICC responded with a statement expressing "profound regret at the announcement of further threats and coercive actions." "These attacks constitute an escalation and an unacceptable attempt to interfere with the rule of law and the Court’s judicial proceedings", the statement said. "They are announced with the declared aim of influencing the actions of ICC officials in the context of the court’s independent and objective investigations and impartial judicial proceedings."
Following the announcement that the ICC would open a preliminary investigation on the Philippines in connection to its escalating drug war, President Rodrigo Duterte announced on 14 March 2018 that the Philippines would start to submit plans to withdraw, completing the process on 17 March 2019. The ICC pointed out that it retained jurisdiction over the Philippines during the period when it was a state party to the Rome Statute, from November 2011 to March 2019.
On 30 September 2020, prominent United States human rights lawyers announced that they would sue Trump and his Administration, including Secretary of State Mike Pompeo, Treasury secretary Steven Mnuchin, attorney general William Barr, and OFAC director Andrea Gacki, and the departments they head, on the grounds that Trump's executive order had gagged them, violating their right to free speech, and impeded their work in trying to obtain justice on behalf of victims of war crimes. One of the plaintiffs, Diane Marie Amann, stated that, as a result of sanctions against the chief prosecutor at the ICC, she herself risked having her family assets seized if she continued to work for children who are bought and sold by traffickers, killed, tortured, sexually abused and forced to become child soldiers.
However, on January 4, 2021, U.S. District Judge Katherine Polk Failla in Manhattan issued a preliminary injunction against the White House (and its Executive Order 13928 that was issued in June 2020 from President Donald Trump) from imposing criminal or civil penalties against four law professors.
Structure
The ICC is governed by the Assembly of States Parties, which is made up of the states that are party to the Rome Statute. The Assembly elects officials of the Court, approves its budget, and adopts amendments to the Rome Statute. The Court itself, however, is composed of four organs: the Presidency, the Judicial Divisions, the Office of the Prosecutor, and the Registry.
State parties
As of November 2019, 123 states are parties to the Statute of the Court, including all the countries of South America, nearly all of Europe, most of Oceania and roughly half of Africa. Burundi and the Philippines were member states, but later withdrew effective 27 October 2017 and 17 March 2019, respectively. A further 31 countries have signed but not ratified the Rome Statute. The law of treaties obliges these states to refrain from "acts which would defeat the object and purpose" of the treaty until they declare they do not intend to become a party to the treaty. Four signatory states—Israel, Sudan, the United States and Russia—have informed the UN Secretary General that they no longer intend to become states parties and, as such, have no legal obligations arising from their signature of the Statute.
Forty-one additional states have neither signed nor acceded to the Rome Statute. Some of them, including China and India, are critical of the Court. Ukraine, a non-ratifying signatory, has accepted the Court's jurisdiction for a period starting in 2013.
Assembly of States Parties
The Court's management oversight and legislative body, the Assembly of States Parties, consists of one representative from each state party. Each state party has one vote and "every effort" has to be made to reach decisions by consensus. If consensus cannot be reached, decisions are made by vote. The Assembly is presided over by a president and two vice-presidents, who are elected by the members to three-year terms.
The Assembly meets in full session once a year, alternating between New York and The Hague, and may also hold special sessions where circumstances require. Sessions are open to observer states and non-governmental organizations.
The Assembly elects the judges and prosecutors, decides the Court's budget, adopts important texts (such as the Rules of Procedure and Evidence), and provides management oversight to the other organs of the Court. Article 46 of the Rome Statute allows the Assembly to remove from office a judge or prosecutor who "is found to have committed serious misconduct or a serious breach of his or her duties" or "is unable to exercise the functions required by this Statute".
The states parties cannot interfere with the judicial functions of the Court. Disputes concerning individual cases are settled by the Judicial Divisions.
In 2010, Kampala, Uganda hosted the Assembly's Rome Statute Review Conference.
Organs of the Court
The Court has four organs: the Presidency, the Judicial Division, the Office of the Prosecutor, and the Registry.
Presidency
The Presidency is responsible for the proper administration of the Court (apart from the Office of the Prosecutor). It comprises the President and the First and Second Vice-Presidents—three judges of the Court who are elected to the Presidency by their fellow judges for a maximum of two three-year terms.
As of March 2021, the President is Piotr Hofmański from Poland, who took office on 11 March 2021, succeeding Chile Eboe-Osuji. His first term will expire in 2024.
Judicial Divisions
The Judicial Divisions consist of the 18 judges of the Court, organized into three chambers—the Pre-Trial Chamber, Trial Chamber and Appeals Chamber—which carry out the judicial functions of the Court. Judges are elected to the Court by the Assembly of States Parties. They serve nine-year terms and are not generally eligible for re-election. All judges must be nationals of states parties to the Rome Statute, and no two judges may be nationals of the same state. They must be "persons of high moral character, impartiality and integrity who possess the qualifications required in their respective States for appointment to the highest judicial offices".
The Prosecutor or any person being investigated or prosecuted may request the disqualification of a judge from "any case in which his or her impartiality might reasonably be doubted on any ground". Any request for the disqualification of a judge from a particular case is decided by an absolute majority of the other judges. A judge may be removed from office if he or she "is found to have committed serious misconduct or a serious breach of his or her duties" or is unable to exercise his or her functions. The removal of a judge requires both a two-thirds majority of the other judges and a two-thirds majority of the states parties.
Office of the Prosecutor
The Office of the Prosecutor (OTP) is responsible for conducting investigations and prosecutions. It is headed by the Chief Prosecutor, who is assisted by one or more Deputy Prosecutors. The Rome Statute provides that the Office of the Prosecutor shall act independently; as such, no member of the Office may seek or act on instructions from any external source, such as states, international organizations, non-governmental organizations or individuals.
The Prosecutor may open an investigation under three circumstances:
when a situation is referred to him or her by a state party;
when a situation is referred to him or her by the United Nations Security Council, acting to address a threat to international peace and security; or
when the Pre-Trial Chamber authorizes him or her to open an investigation on the basis of information received from other sources, such as individuals or non-governmental organizations.
Any person being investigated or prosecuted may request the disqualification of a prosecutor from any case "in which their impartiality might reasonably be doubted on any ground". Requests for the disqualification of prosecutors are decided by the Appeals Chamber. A prosecutor may be removed from office by an absolute majority of the states parties if he or she "is found to have committed serious misconduct or a serious breach of his or her duties" or is unable to exercise his or her functions. However, critics of the Court argue that there are "insufficient checks and balances on the authority of the ICC prosecutor and judges" and "insufficient protection against politicized prosecutions or other abuses". Luis Moreno-Ocampo, chief ICC prosecutor, stressed in 2011 the importance of politics in prosecutions: "You cannot say al-Bashir is in London, arrest him. You need a political agreement." Henry Kissinger says the checks and balances are so weak that the prosecutor "has virtually unlimited discretion in practice".
As of 16 June 2012, the Prosecutor has been Fatou Bensouda of Gambia, who had been elected as the new Prosecutor on 12 December 2011. She has been elected for nine years. Her predecessor, Luis Moreno Ocampo of Argentina, had been in office from 2003 to 2012.
On Friday, 12 February 2021, British barrister Karim Khan was selected in a secret ballot against three other candidates to replace the current lead prosecutor Fatou Bensouda as the new prosecutor. His nine-year term will start on 16 June 2021. While he was a British barrister, Khan headed the United Nations’ special investigative team when it looked into Islamic State crimes in Iraq. At the ICC, he has been a lead defense counsel on cases from Kenya, Sudan and Libya.
Policy Paper
A Policy Paper is a document published by the Office of the Prosecutor occasionally where the particular considerations given to the topics in focus of the Office and often criteria for case selection are stated. While a policy paper does not give the Court jurisdiction over a new category of crimes, it promises what the Office of Prosecutor will consider when selecting cases in the upcoming term of service. OTP's policy papers are subject to revision.
The five following Policy Papers have been published since the start of the ICC:
1 September 2007: Policy Paper on the Interest of Justice
12 April 2010: Policy Paper on Victims' Participation
1 November 2013: Policy Paper on Preliminary Examinations
20 June 2014: Policy Paper on Sexual and Gender-Based Crimes
15 September 2016: Policy paper on case selection and prioritization
15 November 2016: Policy on Children
Environmental crimes
On the Policy Paper published in September 2016 it was announced that the International Criminal Court will focus on environmental crimes when selecting the cases. According to this document, the Office will give particular consideration to prosecuting Rome Statute crimes that are committed by means of, or that result in, "inter alia, the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land".
This has been interpreted as a major shift towards the environmental crimes and a move with significant effects.
Registry
The Registry is responsible for the non-judicial aspects of the administration and servicing of the Court. This includes, among other things, "the administration of legal aid matters, court management, victims and witnesses matters, defence counsel, detention unit, and the traditional services provided by administrations in international organizations, such as finance, translation, building management, procurement and personnel". The Registry is headed by the Registrar, who is elected by the judges to a five-year term. The previous Registrar was Herman von Hebel, who was elected on 8 March 2013. The current Registrar is Peter Lewis, who was elected on 28 March 2018.
Jurisdiction and admissibility
The Rome Statute requires that several criteria exist in a particular case before an individual can be prosecuted by the Court. The Statute contains three jurisdictional requirements and three admissibility requirements. All criteria must be met for a case to proceed. The three jurisdictional requirements are (1) subject-matter jurisdiction (what acts constitute crimes), (2) territorial or personal jurisdiction (where the crimes were committed or who committed them), and (3) temporal jurisdiction (when the crimes were committed).
Process
The process to establish the Court's jurisdiction may be "triggered" by any one of three possible sources: (1) a State party, (2) the Security Council or (3) a Prosecutor. It is then up to the Prosecutor acting ex proprio motu ("of his own motion" so to speak) to initiate an investigation under the requirements of Article 15 of the Rome Statute. The procedure is slightly different when referred by a State Party or the Security Council, in which cases the Prosecutor does not need authorization of the Pre-Trial Chamber to initiate the investigation. Where there is a reasonable basis to proceed, it is mandatory for the Prosecutor to initiate an investigation. The factors listed in Article 53 considered for reasonable basis include whether the case would be admissible, and whether there are substantial reasons to believe that an investigation would not serve the interests of justice (the latter stipulates balancing against the gravity of the crime and the interests of the victims).
Subject-matter jurisdiction requirements
The Court's subject-matter jurisdiction means the crimes for which individuals can be prosecuted. Individuals can only be prosecuted for crimes that are listed in the Statute. The primary crimes are listed in article 5 of the Statute and defined in later articles: genocide (defined in article 6), crimes against humanity (defined in article 7), war crimes (defined in article 8), and crimes of aggression (defined in article 8 bis) (which is not yet within the jurisdiction of the Court;). In addition, article 70 defines offences against the administration of justice, which is a fifth category of crime for which individuals can be prosecuted.
Genocide
Article 6 defines the crime of genocide as "acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group". There are five such acts which constitute crimes of genocide under article 6:
Killing members of a group
Causing serious bodily or mental harm to members of the group
Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction
Imposing measures intended to prevent births within the group
Forcibly transferring children of the group to another group
The definition of these crimes is identical to those contained within the Convention on the Prevention and Punishment of the Crime of Genocide of 1948.
In the Akayesu case the Court concluded that inciting directly and publicly others to commit genocide is in itself constitutive of a crime.
Crimes against humanity
Article 7 defines crimes against humanity as acts "committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack". The article lists 16 such as individual crimes:
Murder
Extermination
Enslavement
Deportation or forcible transfer of population
Imprisonment or other severe deprivation of physical liberty
Torture
Rape
Sexual slavery
Enforced prostitution
Forced pregnancy
Enforced sterilization
Sexual violence
Persecution
Enforced disappearance of persons
Apartheid
Other inhumane acts
War crimes
Article 8 defines war crimes depending on whether an armed conflict is either international (which generally means it is fought between states) or non-international (which generally means that it is fought between non-state actors, such as rebel groups, or between a state and such non-state actors). In total there are 74 war crimes listed in article 8. The most serious crimes, however, are those that constitute either grave breaches of the Geneva Conventions of 1949, which only apply to international conflicts, and serious violations of article 3 common to the Geneva Conventions of 1949, which apply to non-international conflicts.
There are 11 crimes which constitute grave breaches of the Geneva Conventions and which are applicable only to international armed conflicts:
Willful killing
Torture
Inhumane treatment
Biological experiments
Willfully causing great suffering
Destruction and appropriation of property
Compelling service in hostile forces
Denying a fair trial
Unlawful deportation and transfer
Unlawful confinement
Taking hostages
There are seven crimes which constitute serious violations of article 3 common to the Geneva Conventions and which are applicable only to non-international armed conflicts:
Murder
Mutilation
Cruel treatment
Torture
Outrages upon personal dignity
Taking hostages
Sentencing or execution without due process
Additionally, there are 56 other crimes defined by article 8: 35 that apply to international armed conflicts and 21 that apply to non-international armed conflicts. Such crimes include attacking civilians or civilian objects, attacking peacekeepers, causing excessive incidental death or damage, transferring populations into occupied territories, treacherously killing or wounding, denying quarter, pillaging, employing poison, using expanding bullets, rape and other forms of sexual violence, and conscripting or using child soldiers.
Crimes of aggression
Article 8 bis defines crimes of aggression. The Statute originally provided that the Court could not exercise its jurisdiction over the crime of aggression until such time as the states parties agreed on a definition of the crime and set out the conditions under which it could be prosecuted. Such an amendment was adopted at the first review conference of the ICC in Kampala, Uganda, in June 2010. However, this amendment specified that the ICC would not be allowed to exercise jurisdiction of the crime of aggression until two further conditions had been satisfied: (1) the amendment has entered into force for 30 states parties and (2) on or after 1 January 2017, the Assembly of States Parties has voted in favor of allowing the Court to exercise jurisdiction. On 26 June 2016 the first condition was satisfied and the state parties voted in favor of allowing the Court to exercise jurisdiction on 14 December 2017. The Court's jurisdiction to prosecute crimes of aggression was accordingly activated on 17 July 2018.
The Statute, as amended, defines the crime of aggression as "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." The Statute defines an "act of aggression" as "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." The article also contains a list of seven acts of aggression, which are identical to those in United Nations General Assembly Resolution 3314 of 1974 and include the following acts when committed by one state against another state:
Invasion or attack by armed forces against territory
Military occupation of territory
Annexation of territory
Bombardment against territory
Use of any weapons against territory
Blockade of ports or coasts
Attack on the land, sea, or air forces or marine and air fleets
The use of armed forces which are within the territory of another state by agreement, but in contravention of the conditions of the agreement
Allowing territory to be used by another state to perpetrate an act of aggression against a third state
Sending armed bands, groups, irregulars, or mercenaries to carry out acts of armed force
Offenses against the administration of justice
Article 70 criminalizes certain intentional acts which interfere with investigations and proceedings before the Court, including giving false testimony, presenting false evidence, corruptly influencing a witness or official of the Court, retaliating against an official of the Court, and soliciting or accepting bribes as an official of the Court.
Territorial or personal jurisdiction requirements
For an individual to be prosecuted by the Court either territorial jurisdiction or personal jurisdiction must exist. Therefore, an individual can only be prosecuted if he or she has either (1) committed a crime within the territorial jurisdiction of the Court or (2) committed a crime while being a national of a state that is within the territorial jurisdiction of the Court.
Territorial jurisdiction
The territorial jurisdiction of the Court includes the territory, registered vessels, and registered aircraft of states which have either (1) become party to the Rome Statute or (2) accepted the Court's jurisdiction by filing a declaration with the Court.
In situations that are referred to the Court by the United Nations Security Council, the territorial jurisdiction is defined by the Security Council, which may be more expansive than the Court's normal territorial jurisdiction. For example, if the Security Council refers a situation that took place in the territory of a state that has both not become party to the Rome Statute and not lodged a declaration with the Court, the Court will still be able to prosecute crimes that occurred within that state.
Personal jurisdiction
The personal jurisdiction of the Court extends to all natural persons who commit crimes, regardless of where they are located or where the crimes were committed, as long as those individuals are nationals of either (1) states that are party to the Rome Statute or (2) states that have accepted the Court's jurisdiction by filing a declaration with the Court. As with territorial jurisdiction, the personal jurisdiction can be expanded by the Security Council if it refers a situation to the Court.
Temporal jurisdiction requirements
Temporal jurisdiction is the time period over which the Court can exercise its powers. No statute of limitations applies to any of the crimes defined in the Statute. However, the Court's jurisdiction is not completely retroactive. Individuals can only be prosecuted for crimes that took place on or after 1 July 2002, which is the date that the Rome Statute entered into force. If a state became party to the Statute, and therefore a member of the Court, after 1 July 2002, then the Court cannot exercise jurisdiction prior to the membership date for certain cases.[106] For example, if the Statute entered into force for a state on 1 January 2003, the Court could only exercise temporal jurisdiction over crimes that took place in that state or were committed by a national of that state on or after 1 January 2003.
Admissibility requirements
To initiate an investigation, the Prosecutor must (1) have a "reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed", (2) the investigation would be consistent with the principle of complementarity, and (3) the investigation serves the interests of justice.
Complementarity
The principle of complementarity means that the Court will only prosecute an individual if states are unwilling or unable to prosecute. Therefore, if legitimate national investigations or proceedings into crimes have taken place or are ongoing, the Court will not initiate proceedings. This principle applies regardless of the outcome of national proceedings. Even if an investigation is closed without any criminal charges being filed or if an accused person is acquitted by a national court, the Court will not prosecute an individual for the crime in question so long as it is satisfied that the national proceedings were legitimate. However, the actual application of the complementarity principle has recently come under theoretical scrutiny.
Gravity
The Court will only initiate proceedings if a crime is of "sufficient gravity to justify further action by the Court".
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