International Criminal Court
The Statute of the International Criminal Court was adopted in Rome in July 1998, an event welcomed by the ICRC as an important step towards ensuring that war crimes, crimes against humanity and genocide would no longer go unpunished.
One hundred and forty years ago, Gustave Moynier, one of the founders of the ICRC, first proposed the establishment of an international criminal court. It was not until the UN came into existence that the international community began to consider the idea, and not until 1998 that it decided to act.
For the ICRC the International Criminal Court (ICC) is a crucial mechanism for the strengthening of the fight to end impunity, and specifically the failure to punish grave breaches of international humanitarian law.
As stated in the ICC Statute, States retain the primary responsibility in the prosecution of international crimes. Under the Geneva Conventions and Additional Protocol I of 1977, States must prosecute people accused of war crimes before their own national courts or extradite them for trial elsewhere.
In that sense, the ICC may only exercise a complementary jurisdiction in respect of international crimes, meaning it may only take up a case when a State is unable or unwilling to prosecute the suspects. It may also initiate proceedings when requested by the UN Security Council, acting under Chapter VII of the UN Charter.
The ICC shall have jurisdiction over war crimes, crimes against humanity and genocide. This includes most of the serious violations of IHL covered by the 1949 Geneva Conventions and the 1977 Additional Protocols whether committed during an international or non-international armed conflict.
The Statute includes specific war crimes such as all forms of sexual violence committed during an armed conflict and the use in hostilities of children under 15 years old.
On genocide, the ICC reiterates the definition of the crime found in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. It defines genocide as actions (such as intentional killing) intended to destroy, in whole or in part, a national, ethnic, racial or religious group.
The ICC also has jurisdiction over crimes against humanity, which include a range of acts committed as part of a widespread or systematic attack directed against any civilian population.
The crime of aggression, also mentioned in the Statute, was not defined during the establishment of the Court, but will come within the ICC’s jurisdiction once it is.
Contrary to other international courts, the ICC may take action against individuals but not States. However, nothing in the ICC Statute releases States from their obligations under existing IHL or customary international law.
The ICRC is actively encouraging States to ratify the ICC Statute as soon as possible, and actively works with States on the review of their existing national legislation to ensure it meets their obligations under IHL and international criminal law to end impunity.
The ICRC has also welcomed the granting to ICRC personnel of immunity from providing evidence to the court, as found in Rule 73 of the Statute.
The rule recognizes the essential role confidentiality plays and shall continue to play in all ICRC’s operations. The ICRC will continue to have total control over the information it may acquire when working closely with all parties to a conflict. This will enable it to keep in strict confidence all communications or reports it may produce on combatants and other weapon-bearers and fulfil its humanitarian mission to limit the suffering caused by armed conflict.