Joining the ICC
When we say “joining the International Criminal Court” we are referring to states ratifying, or acceding to, the Rome Statute, the Court’s founding treaty. ICC member states also take on a whole range of legal, and moral, obligations.
All ICC member states are obliged to cooperate with the Court and its decisions, and can be referred to the Assembly of States Parties for non-cooperation. However, the enforcement of cooperation remains weak spot in the Rome Statute system.
ICC member states should also actively participate in the ASP and its annual sessions, and provide the ICC with high-level political support, along with technical assistance when necessary.
To increase the effectiveness of international justice, states should implement the provisions Rome Statute into domestic law to ensure complementarity (national prosecutions of grave crimes) and to facilitate cooperation with the ICC.
States also consider the ratification of the Agreement on Privileges and Immunities of the Court (APIC), as well as the Kampala Amendments (on the Crime of Aggression and updated War Crimes provision).
Why should countries join the ICC?
Global ratification of the Rome Statute is necessary to achieve an international criminal justice system that eradicates the existence of any safe havens for individuals who commit the worst crimes known to human kind.
The ICC is actively striving towards ending impunity by holding the perpetrators of the gravest international crimes accountable.
For the ICC to be truly successful, universal membership is an integral component.
By joining the ICC, countries can give the Court a truly global reach, work to improve the efficiency and effectiveness of international justice, run for election as ICC and ASP officials, and propose amendments, improve their own national legal systems, increase access to justice to victims
Just as important is the support and cooperation of states, especially in areas such as execution of arrest warrants and surrender, and permitting investigation and the collection of evidence in the territory of states where international crimes are alleged to have been committed.
Joining the ICC is especially essential for countries where prosecution of these crimes domestically is impossible. This could be because:
- Such conduct may not be criminal under the municipal law in that state
- The national legal system of the state has collapsed
Deterrence and prevention are also key focal points in the ICC agenda. Universal membership thereof would essentially ensure an increase international stability and peace. Widespread acceptance and ratification is an absolute necessity to achieve these goals.
Furthermore, the ICC, contrary to speculation, is financially viable. The total cost of the ICC has been estimated to amount to only a portion of the total expenditure currently incurred on the domestic investigation and prosecution of such crimes. And is a fraction of the trillions spent on war each year.
The Rome Statute also carries with it safeguards against politically motivated investigations and prosecution. Although the Security Council can refer situations to the Prosecutor of the ICC, the ultimate decision of whether to ask the Pre Trial Chamber for authorization to commence investigation into a particular case is the Prosecutor's alone. The Prosecutor can initiate an investigation proprio motu based on information he/she receives.
The commendable work and success of the trust fund for victims is in itself a great incentive to join the ICC system. With universal membership, the ICC will be able to lead a more effective and resolute fight against impunity.
Campaign for Global Justice
The Coalition has been campaigning for the idea of global justice since it was convened in 1995. This began with leading the campaign for the creation of a global court. The CICC and its members were closely involved in the negotiations for the Rome Statute before and during the Rome conference in 1998 and played a major role in states coming to agreement on the provisions.
Since the entry into force of the Rome Statute in 2002 and the creation of the International Criminal Court, the Coalition has campaigned for universal ratification of the Rome Statute and its implementation into national law.
In 2014, with almost two-thirds of the world’s countries’ members of the ICC system, the Coalition decided to revamp its long-running Universal Ratification Campaign. While retaining Rome Statute ratification as a central component, the Campaign for Global Justice includes encouraging national prosecutions of international crimes and greater cooperation with the Court and between states.
In more recent years, the Coalition has also campaigned for the ratification of the Agreement on Privileges and Immunities of the Court (APIC) and the Kampala amendments.
Campaign activities undertaken include the writing of letters to heads of state and other dignitaries, social media campaigns, the organization of meetings with members and between civil society and government officials, parliamentarians and the ICC.
Each month we call on one or more countries to join the ICC, adopt national ICC legislation for domestic prosecution of grave crimes and full cooperation with the Court.
Rome Statute ratification/accession
Ratification of the Rome Statute by all states is important in order to achieve universal accountability for the crimes covered by the Rome Statute, as it allows for the greatest level of universal jurisdiction. In theory any case may be referred for investigation to the ICC by the United Nations Security Council (as was the case with Darfur).
Without this UNSC referral, only cases perpetrated in states parties, or by a national of a state party fall under the jurisdiction of the court. This means that there are still situations in which there is impunity for the international crimes contained in the statute.
Introduction
In order to become a State Party to the statute, states must complete Ratification or Accession in accordance with Article 125 (signature, ratification, acceptance, approval or accession) of the Statute.
Once a state has deposited their instrument for ratification or accession with the Secretary-General of the United Nations, the provisions in the statute will become applicable to that state in accordance with Article 126 (Entry into force) and possibly Article 124 (Transitional Provision).
States may decide to withdraw from the statute according to provisions in Article 127 (Withdrawal).
Signature/Ratification/Accession
The procedure for ratification of, or accession to, the Rome Statute is contained in Article 125 which provides conditions for the length of time the treaty is open to signature, as well as how to ratify or accede to the treaty. It also specifies who can accede to the treaty, which in the case of the Rome Statute is, ‘all states’.
This article refers to different possible actions by a state wanting to become a party to the Rome Statute, but does not contain an explanation of the difference between signature, ratification, acceptance, approval or accession. A signature is an expression of willingness to join the treaty but is not legally binding upon states. Ratification usually occurs by states that signed/negotiated the treaty, whilst accession usually refers to the action taken by states wanting to join an international treaty that has already entered into force, which they were not a signatory to.
Entry into Force
The ‘entry into force’ of a treaty signified the treaty becoming legally binding upon State Parties from that time on. Usually, entry into force happens after a set period of time from ratification or accession to the treaty. In the case of the Rome Statute, Article 126 contains a provision for the entry into force of the statute. In the case of the Rome Statute, the entry into force was postponed until there had been 60 ratifications, meaning that, for the first 60 states, the entry into force was not immediate. After the treaty had entered into force for the first 60 states, it is now the case that, for any state which deposits its instrument of ratification or accession, the treaty enters into force on the first day of the month following the 60th day after the instrument is deposited.
In 2015, states deleted a Rome Statute provision Article 124, allowing for a 7-year deferral with regards to the court’s jurisdiction to try the crimes contained in the statute. In 2016 Norway became the first state to ratify this amendment.
Three original signatories have indicated that they no longer intend to ratify the treaty: Israel, the United States and Sudan.
Withdrawal
The Rome Statute also contains a provision in Article 127 allowing states to withdraw from the Statute. The article describes which actions a state must take to withdraw from the treaty and when this withdrawal enters into force.
Implementation of the Rome Statute
The implementation of the Rome Statute into domestic law is extremely important for the effective functioning of the court. The court is based on the complementarity principle; it is able to prosecute and investigate in conjunction with national prosecutions. To allow for national prosecutions it is pertinent that states' domestic law includes all the crimes in the Rome Statute. Laws on full cooperation with the court are also necessary to allow the court to exercise its powers effectively.
States that have not made all crimes in the Rome Statute a crime under international law will be unable to prosecute them nationally, which can bring unnecessary burden upon the ICC. States that fail to enact laws on cooperation might have trouble with the extradition or surrender of suspects to the court, as well as with the execution of arrest warrants. This may lead to delays, or suspects not being arrested or surrendered to the court at all.
How implementation works
Implementation of the provisions of the Rome Statute into national laws is necessary in order to ensure that these international crimes are not met with impunity. The ICC is a court, which aims to prosecute those most responsible for the crimes contained in the statute, and only when a nation is unwilling or unable to do so themselves. By implementing the provisions from the statute into domestic law, states become more able to conduct national prosecutions.
Full implementation of the statute can be achieved either by updating and amending the existing criminal code (which means that states must update or amend again if the statute is altered or amended), as well as by indicating that the provisions in the treaty shall also be directly applicable under national law.
Effective implementation of the Rome Statute into domestic law, consists of two parts. Legislation must be made complementary, by including the substantive provisions with definitions of crimes incorporated in the Rome Statute in the domestic criminal code, and legislation must incorporate the provisions on full cooperation with the ICC as contained in Part 9 of the statute.
Complementarity (national prosecutions)
Article 1 of the statute establishing the International Criminal Court (ICC) contains a reference to its complementary nature; “It shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute, and shall be complementary to national criminal jurisdictions”
The principle of complementarity holds that the ICC can prosecute perpetrators of international crimes, in addition to national prosecutions and not instead of them. This makes the ICC different in nature from previous international tribunals such as the former-Yugoslavia and Rwanda tribunals, which superseded national jurisdiction.
For the ICC, the complementarity entails that the primary responsibility for the prosecution of the crimes contained in the statute lies with states. Only if a state is unable (lack of resources, lack of stability, lack of national legislation) or unwilling (does not take action, or takes insufficient action) to prosecute will the case be investigated by the ICC. The ICC can also be asked to provide assistance with national prosecutions if a state is unable to carry the financial burden.
As stated by former ICC prosecutor Luis Ocampo-Moreno (16 June 2003): “As a consequence of complementarity, the number of cases that reach the Court should not be a measure of its efficiency. On the contrary, the absence of trials before this Court, as a consequence of the regular functioning of national institutions, would be a major success.”
Cooperation
In order for the court to successfully prosecute the perpetrators of crimes contained in the statute, should national prosecution not be an option, the full cooperation of states parties is required. Laws on full cooperation with the ICC should be enacted by all States Parties upon ratification of the statute.
Part 9 of the Rome Statute contains several provisions regarding cooperation and judicial assistance. Article 86 contains a general obligation to cooperate, whilst Article 88 demands that states ensure procedures are available under national law for all the forms of cooperation which are included in Part 9, such as; the surrender of persons to the Court, provisional arrest and other forms of cooperation. This section also explains what should be done when states receive a competing request - a request from both the court and another state for the extradition or arrest of a suspect.
Aside from the cooperation provisions enshrined in the statute, states are also requested to conclude voluntary cooperation agreements with the ICC on issues such as enforcement of sentences or witness relocation.
Agreement on Privileges and Immunities of the Court
The Agreement on Privileges and Immunities of the Court (APIC) was adopted by the Assembly of States Parties at its first session, from 3-10 September 2002 in New York. It was written between 1998 and 2002, along with other documents such as the elements of crimes, in order to support the work of the court and ensure that the court can carry out the functions set out in the statute. The APIC entered into force on 22 July 2004, for those states who had ratified it.
The CICC has conducted a separate campaign for the ratification of the APIC.
The Agreement on Privileges and Immunities of the Court (APIC)
The APIC contains provisions on immunities and privileges necessary for the court, officials of the court and others affiliated with the court, to carry out their duties properly and effectively. It also addresses the circumstances under which these privileges and immunities might be waived.
The process for ratification or accession to the APIC is similar to that of the Rome Statute (and other international treaties) and is contained in the APIC in Article 34 ‘signature, ratification, acceptance, approval or accession’. The agreement entered into force 30 days after the 10th instrument of ratification was deposited with the Secretary-General. Since then, the instrument enters into force 30 days after the ratifying or acceding state deposits their instrument. This is described in Article 35 ‘entry into force’.
As is the case with the Rome Statute itself, amendments to the APIC are possible. The procedure describing how an amendment may be included in the agreement is set out in Article 36: ‘amendments’ of the statute. In order for an amendment to be included, consensus on it must be reached. If consensus is not achieved, a two-third majority vote in favour of the amendment must take place. Once an amendment has been adopted, it will be circulated amongst States Parties and observers. It will, as specified in Article 36(5) enter into force for those States Parties that have ratified the amendment 60 days after two-thirds of the State Parties to the treaty have deposited instruments of ratification. For states ratifying or accepting the amendment after this initial entry into force, it will become applicable 60 days after depositing their instrument of ratification. States which ratify, or accede to, the entire treaty after the amendment has entered into force as specified in Article 36(5), will be found to be bound by the amended version of the treaty, unless otherwise specified.
Withdrawal from the APIC is also possible, and the procedure for this is described in Article 37: ‘denunciation’. This article contains the provision that states can submit in writing their denunciation of the treaty and that this will take effect one year after the date the notification is received. Denouncing this treaty does not relieve a state from obligations it would have under international law regardless of whether or not it has ratified the APIC.
In addition to the campaign for universal ratification of the Rome Statute, the CICC also runs a separate campaign calling for the ratification of the APIC. This campaign includes sending letters to heads of state and informing the public with regards to the treaty and why it is important.
Amendments, including Crime of Aggression
ICC member states can propose amendments to the Rome Statute to add or delete provisions and crimes. They can also amend the ICC’s Rules of Procedure and Evidence.
The Rome Statute of the ICC covers war crimes, crimes against humanity, genocide and the crime of aggression. The latter was included without a definition, which was to be decided upon at the 2010 review conference. This is the first time that individual criminal responsibility will exist for the crime of aggression.Aside from the Crime of Aggression, the statute also contains several other new (elements of) crimes, which were previously not explicitly defined in international law, mostly related to sexual and gender-based violence.
There are also discussions amongst some parties (NGOs, states) about expanding the statute to include jurisdiction over other crimes, such as international terrorism, and environmental crimes such as ‘ecocide’.
The Assembly of States Parties considers all proposed amendments in the Working Group on amendments.
The Crime of Aggression
The ICC currently only has jurisdiction over war crimes, crimes against humanity and genocide, as provided for by Article 5 of the statute, and as defined in articles 6 to 8 and in the elements of crimes document as provided for in Article 9.
The Crime of Aggression is also included in the statute under Article 5. It cannot, however, be investigated yet. In the original un-amended 2002 version of the Rome Statute, Article 5 included Sub-article 2 which stated: “The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations.” Therefore, before the court could exercise jurisdiction over the Crime of Aggression certain steps, such as agreeing to a definition and relevant procedures, had to be taken.
2010 Kampala Review Conference
During the 2010 Review Conference, which took place in Kampala, Uganda, the States Parties to the Rome Statute agreed, amongst other decisions, on the definition of the crime of aggression to be included in the statute as Article 8 bis.
The definition of the crime of aggression agreed upon in Kampala, contained in Article 8 bis (1) is as follows: “For the purpose of this Statute, “crime of aggression” means 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.” In Article 8 bis (2) the definition of an act of aggression is provided.
They also agreed that the Court may exercise jurisdiction over the crime of aggression only after 1 January 2017 and only if a minimum of thirty States Parties have ratified the amendments. This is further still subject to confirmation of the decision by the Assembly of States Parties to activate that jurisdiction with a 2/3 majority vote.
These provisions on jurisdiction over the crime of aggression are contained in articles 15 bis and ter. There is a distinction between whether the investigation is instigated by a referral from the UN Security Council (Article 15 ter), or if it is a referral by a state or proprio motu investigation (Article 15 bis). These elaborate provisions mean that jurisdiction over the crime of aggression will not be as straight forward as for war crimes, crimes against humanity and genocide. Several conditions have to be met before the court can exercise jurisdiction and even then the situation is complicated until all States Parties have ratified the amendment. The conditions under which the court will have jurisdiction over this crime are simplified in a table by the campaign for the ratification of the crime of aggression.
30 ratifications reached in 2016
As of the 2010 Kampala Review conference, the amendments agreed upon (the amendment on the Crime of Aggression, as well as an amendment to the war crimes provision) were open for ratification.
Liechtenstein was the first state to complete ratification of the amendment in May 2012. In June 2016, Palestine became the 30th state to ratify the amendment to the Rome Statute on the crime of aggression.
The Palestinian ratification paves the way for the next step in the process towards allowing the ICC to exercise its jurisdiction over the crime of aggression. After January 2017, the Assembly of States Parties will have to vote on a decision to allow entry into force of the amendment. This decision must be adopted with a two-thirds majority.
Click here for an up-to-date overview
Click here for an up-to-date overview of all states that have ratified the amendments and the status of ratification around the world.
Deletion of Rome Statute article 124 on war crimes opt-out
In a historic move anticipated and long-called for by civil society, states also agreed to delete article 124 from the Rome Statute. According to article 124, a state, on becoming a state party to the Rome Statute, may declare that for a period of seven years after ratification, it does not accept the Court’s jurisdiction with regard to war crimes allegedly committed by that state’s nationals or on its territory.
“The deletion of article 124 from the Rome Statute is a positive development for international justice as it was inconsistent with the object and purpose of the Rome Statute “to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes,” said Jonathan O’Donohue, legal adviser for Amnesty International. “The Rome Statute must not enable opt outs that permit impunity for the most serious crimes of concern to the international community.
Other New Crimes
Although the crime of aggression is the most well-known ‘new crime’ in the Rome Statute, there are other crimes which have been included in the statute or elements of crimes document which were not explicitly a crime under international law before.
This includes mostly sexual and gender based crimes, which were previously prosecuted in other international tribunals under ‘other inhumane acts’ such as; sexual slavery, forced pregnancy and enforced sterilization.
ICC case law and judicial decisions have also opened the possibility for the prosecution of forced marriage as a crime separate from sexual slavery, under ‘other inhumane acts’ which may in time lead to an amendment to the statute to include an explicit reference to forced marriage.
Aside from these new crimes already included in the statute, there are also discussions on amending the statute to allow the ICC further jurisdiction over other international crimes, such as terrorism and environmental crimes. These discussions have however not yet led to any concrete action.
