Interests of justice
The Prosecutor will initiate an investigation unless there are "substantial reasons to believe that an investigation would not serve the interests of justice" when "[t]aking into account the gravity of the crime and the interests of victims". Furthermore, even if an investigation has been initiated and there are substantial facts to warrant a prosecution and no other admissibility issues, the Prosecutor must determine whether a prosecution would serve the interests of justice "taking into account all the circumstances, including the gravity of the crime, the interests of victims and the age or infirmity of the alleged perpetrator, and his or her role in the alleged crime".
Individual criminal responsibility
The Court has jurisdiction over natural persons. A person who commits a crime within the jurisdiction of the Court is individually responsible and liable for punishment in accordance with the Rome Statute. In accordance with the Rome Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person: Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible; Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted; For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission; In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. In respect of the crime of genocide, directly and publicly incites others to commit genocide; Attempts to commit such a crime by taking action that commences its execution by means of a substantial step, but the crime does not occur because of circumstances independent of the person's intentions
Procedure
Trial
Trials are conducted under a hybrid common law and civil law judicial system, but it has been argued the procedural orientation and character of the court is still evolving. A majority of the three judges present, as triers of fact in a bench trial, may reach a decision, which must include a full and reasoned statement. Trials are supposed to be public, but proceedings are often closed, and such exceptions to a public trial have not been enumerated in detail. In camera proceedings are allowed for protection of witnesses or defendants as well as for confidential or sensitive evidence. Hearsay and other indirect evidence is not generally prohibited, but it has been argued the court is guided by hearsay exceptions which are prominent in common law systems. There is no subpoena or other means to compel witnesses to come before the court, although the court has some power to compel testimony of those who chose to come before it, such as fines.
Rights of the accused
The Rome Statute provides that all persons are presumed innocent until proven guilty beyond reasonable doubt, and establishes certain rights of the accused and persons during investigations. These include the right to be fully informed of the charges against him or her; the right to have a lawyer appointed, free of charge; the right to a speedy trial; and the right to examine the witnesses against him or her.
To ensure "equality of arms" between defence and prosecution teams, the ICC has established an independent Office of Public Counsel for the Defence (OPCD) to provide logistical support, advice and information to defendants and their counsel. The OPCD also helps to safeguard the rights of the accused during the initial stages of an investigation. However, Thomas Lubanga's defense team say they were given a smaller budget than the Prosecutor and that evidence and witness statements were slow to arrive.
Victim participation
One of the great innovations of the Statute of the International Criminal Court and its Rules of Procedure and Evidence is the series of rights granted to victims. For the first time in the history of international criminal justice, victims have the possibility under the Statute to present their views and observations before the Court.
Participation before the Court may occur at various stages of proceedings and may take different forms, although it will be up to the judges to give directions as to the timing and manner of participation.
Participation in the Court's proceedings will in most cases take place through a legal representative and will be conducted "in a manner which is not prejudicial or inconsistent with the rights of the accused and a fair and impartial trial".
The victim-based provisions within the Rome Statute provide victims with the opportunity to have their voices heard and to obtain, where appropriate, some form of reparation for their suffering. It is the aim of this attempted balance between retributive and restorative justice that, it is hoped, will enable the ICC to not only bring criminals to justice but also help the victims themselves obtain some form of justice. Justice for victims before the ICC comprises both procedural and substantive justice, by allowing them to participate and present their views and interests, so that they can help to shape truth, justice and reparations outcomes of the Court.
Article 43(6) establishes a Victims and Witnesses Unit to provide "protective measures and security arrangements, counseling and other appropriate assistance for witnesses, victims who appear before the Court, and others who are at risk on account of testimony given by such witnesses." Article 68 sets out procedures for the "Protection of the victims and witnesses and their participation in the proceedings." The Court has also established an Office of Public Counsel for Victims, to provide support and assistance to victims and their legal representatives.
The ICC does not have its own witness protection program, but rather must rely on national programs to keep witnesses safe.
Reparations
Victims before the International Criminal Court can also claim reparations under Article 75 of the Rome Statute. Reparations can only be claimed when a defendant is convicted and at the discretion of the Court's judges. So far the Court has ordered reparations against Thomas Lubanga. Reparations can include compensation, restitution and rehabilitation, but other forms of reparations may be appropriate for individual, collective or community victims. Article 79 of the Rome Statute establishes a Trust Fund to provide assistance before a reparation order to victims in a situation or to support reparations to victims and their families if the convicted person has no money.
Co-operation by states not party to Rome Statute
One of the principles of international law is that a treaty does not create either obligations or rights for third states without their consent, and this is also enshrined in the 1969 Vienna Convention on the Law of Treaties. The co-operation of the non-party states with the ICC is envisioned by the Rome Statute of the International Criminal Court to be of voluntary nature. However, even states that have not acceded to the Rome Statute might still be subjects to an obligation to co-operate with ICC in certain cases. When a case is referred to the ICC by the UN Security Council all UN member states are obliged to co-operate, since its decisions are binding for all of them. Also, there is an obligation to respect and ensure respect for international humanitarian law, which stems from the Geneva Conventions and Additional Protocol I, which reflects the absolute nature of international humanitarian law.
In relation to co-operation in investigation and evidence gathering, it is implied from the Rome Statute that the consent of a non-party state is a prerequisite for ICC Prosecutor to conduct an investigation within its territory, and it seems that it is even more necessary for him to observe any reasonable conditions raised by that state, since such restrictions exist for states party to the Statute. Taking into account the experience of the International Criminal Tribunal for the former Yugoslavia (which worked with the principle of the primacy, instead of complementarity) in relation to co-operation, some scholars have expressed their pessimism as to the possibility of ICC to obtain co-operation of non-party states. As for the actions that ICC can take towards non-party states that do not co-operate, the Rome Statute stipulates that the Court may inform the Assembly of States Parties or Security Council, when the matter was referred by it, when non-party state refuses to co-operate after it has entered into an ad hoc arrangement or an agreement with the Court.
Amnesties and national reconciliation processes
It is unclear to what extent the ICC is compatible with reconciliation processes that grant amnesty to human rights abusers as part of agreements to end conflict. Article 16 of the Rome Statute allows the Security Council to prevent the Court from investigating or prosecuting a case, and Article 53 allows the Prosecutor the discretion not to initiate an investigation if he or she believes that "an investigation would not serve the interests of justice". Former ICC president Philippe Kirsch has said that "some limited amnesties may be compatible" with a country's obligations genuinely to investigate or prosecute under the Statute.
It is sometimes argued that amnesties are necessary to allow the peaceful transfer of power from abusive regimes. By denying states the right to offer amnesty to human rights abusers, the International Criminal Court may make it more difficult to negotiate an end to conflict and a transition to democracy. For example, the outstanding arrest warrants for four leaders of the Lord's Resistance Army are regarded by some as an obstacle to ending the insurgency in Uganda. Czech politician Marek Benda argues that "the ICC as a deterrent will in our view only mean the worst dictators will try to retain power at all costs". However, the United Nations and the International Committee of the Red Cross maintain that granting amnesty to those accused of war crimes and other serious crimes is a violation of international law.
Facilities
Headquarters
International Criminal Court
The official seat of the Court is in The Hague, Netherlands, but its proceedings may take place anywhere.
The Court moved into its first permanent premises in The Hague, located at Oude Waalsdorperweg 10, on 14 December 2015. Part of The Hague's International Zone, which also contains the Peace Palace, Europol, Eurojust, ICTY, OPCW and The Hague World Forum, the court facilities are situated on the site of the Alexanderkazerne, a former military barracks, adjacent to the dune landscape on the northern edge of the city. The ICC's detention centre is a short distance away.
Development
The land and financing for the new construction were provided by the Netherlands. In addition, the host state organized and financed the architectural design competition which started at the end of 2008.
Three architects were chosen by an international jury from a total of 171 applicants to enter into further negotiations. The Danish firm schmidt hammer lassen were ultimately selected to design the new premises since its design met all the ICC criteria, such as design quality, sustainability, functionality and costs.
Demolition of the barracks started in November 2011 and was completed in August 2012. In October 2012 the tendering procedure for the General Contractor was completed and the combination Visser & Smit Bouw and Boele & van Eesteren ("Courtys") was selected.
Architecture
The building has a compact footprint and consists of six connected building volumes with a garden motif. The tallest volume with a green facade, placed in the middle of the design, is the Court Tower that accommodates three courtrooms. The rest of the building's volumes accommodate the offices of the different organs of the ICC.
Exterior
Until late 2015, the ICC was housed in interim premises in The Hague provided by the Netherlands. Formerly belonging to KPN, the provisional headquarters were located at Maanweg 174 in the east-central portion of the city.
Detention centre
The ICC's detention centre accommodates both those convicted by the court and serving sentences as well as those suspects detained pending the outcome of their trial. It comprises twelve cells on the premises of the Scheveningen branch of the Haaglanden Penal Institution, The Hague, close to the ICC's headquarters in the Alexanderkazerne. Suspects held by the former International Criminal Tribunal for the former Yugoslavia were held in the same prison and shared some facilities, like the fitness room, but had no contact with suspects held by the ICC.
Other offices
The ICC maintains a liaison office in New York and field offices in places where it conducts its activities. As of 18 October 2007, the Court had field offices in Kampala, Kinshasa, Bunia, Abéché and Bangui.
Finance
The ICC is financed by contributions from the states parties. The amount payable by each state party is determined using the same method as the United Nations: each state's contribution is based on the country's capacity to pay, which reflects factors such as a national income and population. The maximum amount a single country can pay in any year is limited to 22% of the Court's budget; Japan paid this amount in 2008.
The Court spent €80.5 million in 2007. The Assembly of States Parties approved a budget of €90.4 million for 2008, €101.2 million for 2009, and €141.6 million for 2017. As of April 2017, the ICC's staff consisted of 800 persons from approximately 100 states.
Trial history to date
The ICC issued an arrest warrant for Omar al-Bashir of Sudan over alleged war crimes in Darfur.
To date, the Prosecutor has opened investigations in fourteen situations: Afghanistan; Burundi; two in the Central African Republic; Côte d'Ivoire; Darfur, Sudan; the Democratic Republic of the Congo; Georgia; Kenya; Libya; Mali; Uganda; Bangladesh/Myanmar, Palestine and Venezuela. Additionally, the Office of the Prosecutor is conducting preliminary examinations in six situations: Colombia; Guinea; Nigeria; the Philippines; Ukraine and Bolivia.
The Court's Pre-Trial Chambers have publicly indicted 45 people. Proceedings against 19 are ongoing: 12 are at large as fugitives, three are in the pre-trial phase, three are on trial, and one is appealing his sentence. Proceedings against 26 have been completed: two are serving their sentences, six have finished their sentences, four have been acquitted, seven have had the charges against them dismissed, three have had the charges against them withdrawn, and four have died before trial.
Thomas Lubanga, Germain Katanga and Mathieu Ngudjolo Chui were tried by the ICC. Lubanga and Katanga were convicted and sentenced to 14 and 12 years imprisonment, respectively, whereas Chui was acquitted.
The judgment of Jean-Pierre Bemba was rendered in March 2016. Bemba was convicted on two counts of crimes against humanity and three counts of war crimes. This marked the first time the ICC convicted someone of sexual violence as they added rape to his conviction. Bemba's convictions were overturned by the Court's Appeal Chamber in June 2018.
Trials in the Ntaganda case (DR Congo), the Bemba et al. OAJ case and the Laurent Gbagbo-Blé Goudé trial in the Côte d'Ivoire situation are ongoing. The Banda trial in the situation of Darfur, Sudan, was scheduled to begin in 2014 but the start date was vacated.
Charges against Ugandan Dominic Ongwen and Malian Ahmed al-Faqi have been confirmed; as of March 2020 both were awaiting their trials.
On 6 July 2020, two Uyghur activist groups filed a complaint with the ICC calling for it to investigate PRC officials for crimes against Uyghurs including allegations of genocide. The ICC does not have the necessary jurisdiction for this in the absence of a referral from the UN Security Council, as the PRC is not a party to the Rome Statute.
Investigations and preliminary examinations
ICC investigations
Green: Official investigations (Burundi, Central African Republic (2), Côte d'Ivoire, Darfur (Sudan), Democratic Republic of Congo, Georgia, Kenya, Libya, Mali, Uganda, Bangladesh and Myanmar)
Orange: Authorization to open investigation requested (none at present)
Light red: Ongoing preliminary examinations (Afghanistan, Colombia, Comoros, Guinea, Iraq, Nigeria, Palestine, Philippines, Ukraine and Venezuela)
Dark red: Closed preliminary examinations (Honduras and South Korea)
Currently, the Office of the Prosecutor has opened investigations in the Central African Republic, Côte d'Ivoire, Darfur, Sudan, the Democratic Republic of the Congo, Kenya; Libya, Uganda, Bangladesh/Myanmar, Palestine and Venezuela. Additionally, the Office of the Prosecutor conducted preliminary examinations in twelve situations in Afghanistan, Bolivia, Colombia, Guinea, Iraq / the United Kingdom, Nigeria, Georgia, Honduras, South Korea and Venezuela. Preliminary investigations were closed in Gabon, Honduras, registered vessels of Comoros, Greece, and Cambodia, South Korea, and Colombia on events since 1 July 2002.
Relationships
United Nations
Unlike the International Court of Justice, the ICC is legally independent from the United Nations. However, the Rome Statute grants certain powers to the United Nations Security Council, which limits its functional independence. Article 13 allows the Security Council to refer to the Court situations that would not otherwise fall under the Court's jurisdiction (as it did in relation to the situations in Darfur and Libya, which the Court could not otherwise have prosecuted as neither Sudan nor Libya are state parties). Article 16 allows the Security Council to require the Court to defer from investigating a case for a period of 12 months. Such a deferral may be renewed indefinitely by the Security Council. This sort of an arrangement gives the ICC some of the advantages inhering in the organs of the United Nations such as using the enforcement powers of the Security Council, but it also creates a risk of being tainted with the political controversies of the Security Council.
The Court cooperates with the UN in many different areas, including the exchange of information and logistical support. The Court reports to the UN each year on its activities, and some meetings of the Assembly of States Parties are held at UN facilities. The relationship between the Court and the UN is governed by a "Relationship Agreement between the International Criminal Court and the United Nations".
Nongovernmental organizations
During the 1970s and 1980s, international human rights and humanitarian Nongovernmental Organizations (or NGOs) began to proliferate at exponential rates. Concurrently, the quest to find a way to punish international crimes shifted from being the exclusive responsibility of legal experts to being shared with international human rights activism.
NGOs helped birth the ICC through advocacy and championing for the prosecution of perpetrators of crimes against humanity. NGOs closely monitor the organization's declarations and actions, ensuring that the work that is being executed on behalf of the ICC is fulfilling its objectives and responsibilities to civil society. According to Benjamin Schiff, "From the Statute Conference onward, the relationship between the ICC and the NGOs has probably been closer, more consistent, and more vital to the Court than have analogous relations between NGOs and any other international organization."
There are a number of NGOs working on a variety of issues related to the ICC. The NGO Coalition for the International Criminal Court has served as a sort of umbrella for NGOs to coordinate with each other on similar objectives related to the ICC. The CICC has 2,500 member organizations in 150 different countries. The original steering committee included representatives from the World Federalist Movement, the International Commission of Jurists, Amnesty International, the Lawyers Committee for Human Rights, Human Rights Watch, Parliamentarians for Global Action, and No Peace Without Justice. Today, many of the NGOs with which the ICC cooperates are members of the CICC. These organizations come from a range of backgrounds, spanning from major international NGOs such as Human Rights Watch and Amnesty International, to smaller, more local organizations focused on peace and justice missions. Many work closely with states, such as the International Criminal Law Network, founded and predominantly funded by the Hague municipality and the Dutch Ministries of Defense and Foreign Affairs. The CICC also claims organizations that are themselves federations, such as the International Federation of Human Rights Leagues (FIDH).
CICC members subscribe to three principles that permit them to work under the umbrella of the CICC, so long as their objectives match them:
Promoting worldwide ratification and implementation of the Rome Statute of the ICC
Maintaining the integrity of the Rome Statute of the ICC, and
Ensuring the ICC will be as fair, effective and independent as possible
The NGOs that work under the CICC do not normally pursue agendas exclusive to the work of the Court, rather they may work for broader causes, such as general human rights issues, victims' rights, gender rights, rule of law, conflict mediation, and peace. The CICC coordinates their efforts to improve the efficiency of NGOs' contributions to the Court and to pool their influence on major common issues. From the ICC side, it has been useful to have the CICC channel NGO contacts with the Court so that its officials do not have to interact individually with thousands of separate organizations.
NGOs have been crucial to the evolution of the ICC, as they assisted in the creation of the normative climate that urged states to seriously consider the Court's formation. Their legal experts helped shape the Statute, while their lobbying efforts built support for it. They advocate Statute ratification globally and work at expert and political levels within member states for passage of necessary domestic legislation. NGOs are greatly represented at meetings for the Assembly of States Parties, and they use the ASP meetings to press for decisions promoting their priorities. Many of these NGOs have reasonable access to important officials at the ICC because of their involvement during the Statute process. They are engaged in monitoring, commenting upon, and assisting in the ICC's activities.
The ICC often depends on NGOs to interact with local populations. The Registry Public Information Office personnel and Victims Participation and Reparations Section officials hold seminars for local leaders, professionals and the media to spread the word about the Court. These are the kinds of events that are often hosted or organized by local NGOs. Because there can be challenges with determining which of these NGOs are legitimate, CICC regional representatives often have the ability to help screen and identify trustworthy organizations.
However, NGOs are also "sources of criticism, exhortation and pressure upon" the ICC. The ICC heavily depends on NGOs for its operations. Although NGOs and states cannot directly impact the judicial nucleus of the organization, they can impart information on crimes, can help locate victims and witnesses, and can promote and organize victim participation. NGOs outwardly comment on the Court's operations, "push for expansion of its activities especially in the new justice areas of outreach in conflict areas, in victims' participation and reparations, and in upholding due-process standards and defense 'equality of arms' and so implicitly set an agenda for the future evolution of the ICC." The relatively uninterrupted progression of NGO involvement with the ICC may mean that NGOs have become repositories of more institutional historical knowledge about the ICC than its national representatives, and have greater expertise than some of the organization's employees themselves. While NGOs look to mold the ICC to satisfy the interests and priorities that they have worked for since the early 1990s, they unavoidably press against the limits imposed upon the ICC by the states that are members of the organization. NGOs can pursue their own mandates, irrespective of whether they are compatible with those of other NGOs, while the ICC must respond to the complexities of its own mandate as well as those of the states and NGOs.
Another issue has been that NGOs possess "exaggerated senses of their ownership over the organization and, having been vital to and successful in promoting the Court, were not managing to redefine their roles to permit the Court its necessary independence." Additionally, because there does exist such a gap between the large human rights organizations and the smaller peace-oriented organizations, it is difficult for ICC officials to manage and gratify all of their NGOs. "ICC officials recognize that the NGOs pursue their own agendas, and that they will seek to pressure the ICC in the direction of their own priorities rather than necessarily understanding or being fully sympathetic to the myriad constraints and pressures under which the Court operates." Both the ICC and the NGO community avoid criticizing each other publicly or vehemently, although NGOs have released advisory and cautionary messages regarding the ICC. They avoid taking stances that could potentially give the Court's adversaries, particularly the US, more motive to berate the organization.
Criticisms
African accusations of Western imperialism
The ICC has been accused of bias and as being a tool of Western imperialism, only punishing leaders from small, weak states while ignoring crimes committed by richer and more powerful states. This sentiment has been expressed particularly by African leaders due to an alleged disproportionate focus of the Court on Africa, while it claims to have a global mandate; until January 2016, all nine situations which the ICC had been investigating were in African countries.
The prosecution of Kenyan Deputy President William Ruto and President Uhuru Kenyatta (both charged before coming into office) led to the Kenyan parliament passing a motion calling for Kenya's withdrawal from the ICC, and the country called on the other 33 African states party to the ICC to withdraw their support, an issue which was discussed at a special African Union (AU) summit in October 2013.
Though the ICC has denied the charge of disproportionately targeting African leaders, and claims to stand up for victims wherever they may be, Kenya was not alone in criticizing the ICC. Sudanese President Omar al-Bashir visited Kenya, South Africa, China, Nigeria, Saudi Arabia, United Arab Emirates, Egypt, Ethiopia, Qatar and several other countries despite an outstanding ICC warrant for his arrest but was not arrested; he said that the charges against him are "exaggerated" and that the ICC was a part of a "Western plot" against him. Ivory Coast's government opted not to transfer former first lady Simone Gbagbo to the court but to instead try her at home. Rwanda's ambassador to the African Union, Joseph Nsengimana, argued that "It is not only the case of Kenya. We have seen international justice become more and more a political matter." Ugandan President Yoweri Museveni accused the ICC of "mishandling complex African issues". Ethiopian Prime Minister Hailemariam Desalegn, at the time AU chairman, told the UN General Assembly at the General debate of the sixty-eighth session of the United Nations General Assembly: "The manner in which the ICC has been operating has left a very bad impression in Africa. It is totally unacceptable."
African Union (AU) withdrawal proposal
South African President Jacob Zuma said the perceptions of the ICC as "unreasonable" led to the calling of the special AU summit on 13 October 2015. Botswana is a notable supporter of the ICC in Africa. At the summit, the AU did not endorse the proposal for a collective withdrawal from the ICC due to lack of support for the idea. However, the summit did conclude that serving heads of state should not be put on trial and that the Kenyan cases should be deferred. Ethiopian Foreign Minister Tedros Adhanom said: "We have rejected the double standard that the ICC is applying in dispensing international justice." Despite these calls, the ICC went ahead with requiring William Ruto to attend his trial. The UNSC was then asked to consider deferring the trials of Kenyatta and Ruto for a year, but this was rejected. In November, the ICC's Assembly of State Parties responded to Kenya's calls for an exemption for sitting heads of state by agreeing to consider amendments to the Rome Statute to address the concerns.
On 7 October 2016, Burundi announced that it would leave the ICC, after the court began investigating political violence in that nation. In the subsequent two weeks, South Africa and Gambia also announced their intention to leave the court, with Kenya and Namibia reportedly also considering departure. All three nations cited the fact that all 39 people indicted by the court over its history have been African and that the court has made no effort to investigate war crimes tied to the 2003 invasion of Iraq. However, following Gambia's presidential election later that year, which ended the long rule of Yahya Jammeh, Gambia rescinded its withdrawal notification. The High Court of South Africa ruled on 2 February 2017 that the South African government's notice to withdraw was unconstitutional and invalid. On 7 March 2017 the South African government formally revoked its intention to withdraw; however, the ruling ANC revealed on 5 July 2017 that its intention to withdraw stands.
Supporters of criminalizing ecocide argue that it would shift the ICC's priorities away from Africa, since most environmental degradation is caused by States and corporations in the Global North.
Criticism by the United States government
The United States Department of State argues 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". The current law in the United States on the ICC is the American Service-Members' Protection Act (ASPA), 116 Stat. 820. The ASPA authorizes the President of the United States to use "all means necessary and appropriate to bring about the release of any U.S. or allied personnel being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court." This authorization has led the act to be nicknamed the "Hague Invasion Act", because the freeing of U.S. citizens by force might be possible only through military action.
On 10 September 2018, John R. Bolton, in his first major address as U.S. National Security Advisor, reiterated that the ICC lacks checks and balances, exercises "jurisdiction over crimes that have disputed and ambiguous definitions," and has failed to "deter and punish atrocity crimes". The ICC, said Bolton, is "superfluous" given that "domestic judicial systems already hold American citizens to the highest legal and ethical standards." He added that the U.S. would do everything "to protect our citizens" should the ICC attempt to prosecute U.S. servicemen over alleged detainee abuse in Afghanistan. In that event, ICC judges and prosecutors would be barred from entering the U.S., their funds in the U.S. would be sanctioned and the U.S. "will prosecute them in the US criminal system. We will do the same for any company or state that assists an ICC investigation of Americans", Bolton said. He also criticized Palestinian efforts to bring Israel before the ICC over allegations of human rights abuses in the West Bank and Gaza.
ICC responded that it will continue to investigate war crimes undeterred.
On 11 June 2020, Mike Pompeo and U.S. President Donald Trump announced sanctions on officials and employees, as well as their families, involved in investigating crimes against humanity committed by US armed forces in Afghanistan. This move was widely criticized by human rights groups. The United States ordered sanctions against the ICC prosecutor Fatou Bensouda, and the ICC's head of Jurisdiction, Complementary, and Cooperation Division, Phakiso Mochochok for an investigation into alleged war crimes by U.S. forces and the Central Intelligence Agency (CIA) in Afghanistan since 2003.
OPCD
Concerning the independent Office of Public Counsel for the Defence (OPCD), Thomas Lubanga's defence team say they were given a smaller budget than the Prosecutor and that evidence and witness statements were slow to arrive.
Limitations
Limitations exist for the ICC. Human Rights Watch (HRW) reported that the ICC's prosecutor team takes no account of the roles played by the government in the conflict of Uganda, Rwanda or Congo. This led to a flawed investigation, because the ICC did not reach the conclusion of its verdict after considering the governments' position and actions in the conflict.
Unintentional consequences
Research indicates that prosecutions of leaders who are culpable of international crimes in the ICC makes them less likely to peacefully step down, which can prolong conflicts and incentivize them to make continued use of mass violence. It is also argued that justice is a means to peace: "As a result, the ICC has been used as a means of intervention in ongoing conflicts with the expectation that the indictments, arrests, and trials of elite perpetrators have deterrence and preventive effects for atrocity crimes. Despite these legitimate intentions and great expectations, there is little evidence of the efficacy of justice as a means to peace".
State cooperation
That the ICC cannot mount successful cases without state cooperation is problematic for several reasons. It means that the ICC acts inconsistently in its selection of cases, is prevented from taking on hard cases and loses legitimacy. It also gives the ICC less deterrent value, as potential perpetrators of war crimes know that they can avoid ICC judgment by taking over government and refusing to cooperate.
Questioning the true application of the principle of complementarity
The fundamental principle of complementarity of the ICC Rome Statute is often taken for granted in the legal analysis of international criminal law and its jurisprudence. Initially the thorny issue of the actual application of the complementarity principle arose in 2008, when William Schabas published his influential paper. However, despite Schabas' theoretical impact, no substantive research was made by other scholars on this issue for quite some time. In June 2017, Victor Tsilonis advanced the same criticism which is reinforced by events, practices of the Office of the Prosecutor and ICC cases in the Essays in Honour of Nestor Courakis. His paper essentially argues that the Αl‐Senussi case arguably is the first instance of the complementarity principle's actual implementation eleven whole years after the ratification of the Rome Statute of the International Criminal Court.
On the other hand, in 2017, Chief Prosecutor Fatou Bensouda invoked the principle of complementarity in the situation between Russia and Georgia in the Ossetia region. Moreover, following the threats of certain African states (initially Burundi, Gambia and South Africa) to withdraw their ratifications, Bensouda again referred to the principle of complementarity as a core principle of ICC's jurisdiction and has more extensively focused on the principle's application on the latest Office of The Prosecutor's Report on Preliminary Examination Activities 2016.
Some advocates have suggested that the ICC go "beyond complementarity" and systematically support national capacity for prosecutions. They argue that national prosecutions, where possible, are more cost-effective, preferable to victims and more sustainable.
Jurisdiction over corporations
There is a debate on whether the ICC should have jurisdiction over corporations who violate international law. Supporters argue that corporations can and do commit human rights violations, such as war crimes linked to raw materials in conflict zones. Critics argue that prosecuting corporations would compromise the principle of complementarity, that it would give corporations excessive power under international law, or that it would compromise voluntary initiatives by companies. John Ruggie has argued that jurisdiction of corporations under international law should be limited to international crimes, while Nicolás Carrillo-Santarelli of La Sabana University argues that it should cover all human rights violations.
Despite its lack of jurisdiction, the ICC announced in 2016 that it would prioritize criminal cases linked to land grabbing, illegal resource extraction, or environmental degradation caused by corporate activity. The proposed crime of ecocide would have jurisdiction over corporations as well as governments.
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