The International Criminal Court, which has its seat in The Hague, Netherlands, was inaugurated in 2002. In certain circumstances, the ICC has the competence to investigate and prosecute individuals for the crimes of genocide, crimes against humanity, war crimes, and aggression. These crimes are defined in articles 5 through 8 bis of the Rome Statute of the ICC.
Genocide, Crimes Against Humanity & War Crimes
The ICC may prosecute crimes of genocide, crimes against humanity, and war crimes when the allegedly responsible individuals are nationals of one of the States parties to the Rome Statute or the crime was committed on the territory of a State Party, or the State involved submits a declaration authorizing the ICC’s jurisdiction with respect to the alleged crime. In such cases, the State involved must refer the situation to the ICC or the ICC must authorize the Prosecutor’s investigation proprio motu. The ICC may also investigate and prosecute when the situation has been referred to it by the UN Security Council, even without the relevant State’s ratification of the Rome Statute or ad hoc acceptance of ICC’s jurisdiction. As of January 2022, there are 123 States parties to the Rome Statute.
Crime of Aggression
With regard to aggression, as of 2018, the ICC may prosecute individuals for this crime when the UN Security Council has referred the situation, at the Prosecutor’s own initiative, or pursuant to a request from a State Party, subject to specific limitations. Upon the Security Council’s referral, the ICC may prosecute crimes of aggression committed by a national, or on the territory, of any UN Member State. If the UN Security Council has not referred the situation, the Court may only investigate crimes of aggression committed by a national, or on the territory of, a State Party to the Rome Statute that has also ratified or accepted the Kampala Amendments (adding the crime of aggression to the Rome Statute). As of January 2022, 41 States have ratified the “Kampala Amendments.”
The ICC’s competence to try individuals for the crime of aggression had been debated since the inception of the Rome Statute. After the 2010 Review Conference in Kampala, a resolution passed addressing the definition of the crime, amending the statute, and outlining how the court will establish its jurisdiction over such crimes. The amendments entered into force after the ratification of 30 States, allowing the ICC to exercise jurisdiction over crimes of aggression as of July 17, 2018. The Assembly of States Parties December 2017 resolution activated the ICC’s exercise of jurisdiction over crime of aggression.
As of February 2020, the ICC Prosecutor has initiated investigations into 16 “situations” which have been referred to the ICC by the States involved or by the UN Security Council, or initiated proprio motu. These are:
- the Central African Republic
- the Central African Republic II
- Côte d’Ivoire
- Darfur, Sudan
- the Democratic Republic of the Congo
- the Philippines
Status of Cases and Investigations
As of January 2022, the Office of the Prosecutor has brought 30 cases before the Court. So far, the ICC has issued 10 convictions and 4 acquittals. Each case or pending investigation is summarized below.
Dominic Ongwen, an alleged commander of the Lord’s Resistance Army (LRA) in Uganda was found guilty of 61 counts of crimes against humanity and war crimes, and sentenced to 25 years’ imprisonment, in 2021. The defense intends to appeal the judgment and may also appeal the sentence. At least two other suspects remain at large with regard to the situation in Uganda, in the separate case of Kony et al.
Trials have concluded in the six cases related to the situation of the Democratic Republic of the Congo. In 2012, the Court convicted Thomas Lubanga Dyilo of enlisting and conscripting children under the age of 15 into the Patriotic Forces for the Liberation of the Congo (FPLC), and acquitted Mathieu Ngudjolo Chui. In 2014, the ICC convicted Germain Katanga of war crimes and crimes against humanity, including murder, rape, and sex slavery. In 2019, Bosco Ntaganda was convicted of 18 counts of war crimes and crimes against humanity, and sentenced to 30 years in prison. An additional DRC defendant, Callixte Mbarushimana, was released from ICC custody after the pre-trial chamber declined to confirm the charges against him. The final DRC defendant, Sylvestre Mudacumura, remains at large.
The six cases in the situation of Darfur, Sudan are in various stages. Bahr Idriss Abu Garda was released after the pre-trial chamber declined to confirm the charges against him in 2010. Although Abdallah Banda Abakaer Nourain appeared voluntarily during the pre-trial stage, he is currently at large. His trial will not begin until he appears in court as the ICC does not try people unless they are present. The Trial Chamber I has scheduled trial to begin for Ali Muhammad Ali Abd-Al-Rahman (“Ali Kushayb”) in April 2022. Three suspects – Muhammad Harun (“Ahmad Harun”), former Sudanese President Omar Hassan Ahmad Al Bashir, and Abdel Raheem Muhammad Hussein – remain at large.
In the situation in the Central African Republic, the Trial Chamber found Jean-Pierre Bemba Gombo guilty of two counts of crimes against humanity and three counts of war crimes. However, the Appeals Chamber reversed the Trial Chamber’s decision, acquitting Bemba on all charges of crimes against humanity and war crimes in 2018. In separate proceedings, Bemba and several members of his legal team were convicted of offenses against the administration of justice for witness tampering and presenting false evidence. On appeal, the Appeals Chamber confirmed the conviction against Bemba with respect to the witness tampering but reversed the charge for presenting false evidence.
The ICC has heard four cases with regard to Kenya. In 2016, the Trial Chamber decided to terminate the case against William Samoei Ruto and Joshua Arap Sang. The charges against President Uhuru Muigai Kenyatta have been dropped due to insufficient evidence. The charges against Francis Kirimi Muthaura, initially confirmed, were later withdrawn and the charges against Henry Kipromo Kosgey and Mohammed Hussein Ali were not confirmed. Additionally, Walter Osapiri Barasa and Philip Kipkoech Bett are wanted by the ICC in connection with witness tampering. The trial of Paul Gicheru, also wanted for corruptly influencing witnesses, is scheduled for February 2022.
With regard to the Côte d’Ivoire cases, the joint trial against former President Laurent Gbagbo and Charles Blé Goudé led to their acquittal on all charges of crimes against humanity in 2019. The arrest warrant for Simone Gbagbo, wanted on similar charges, was vacated in 2021.
All three pending cases connected to the situation of Libya are in the pre-trial phase. Saif Al Islam Gaddafi, Al-Tuhamy Mohamed Khaled, and Mahmoud Mustafa Busayf Al-Werfalli are not yet in ICC custody. In 2013, the ICC pre-trial chamber determined the case against Abdullah Al-Senussi to be inadmissible because his liability was being determined by appropriate domestic proceedings. The proceedings against former Libyan ruler Muammar Gaddafi were terminated upon his death.
In the situation of Mali, one defendant has been convicted and a second is on trial. In 2016, Ahmad Al Faqi Al Mahdi was convicted and sentenced to nine years’ imprisonment for the war crime of intentionally attacking historic and religious sites. An ICC pre-trial chamber charged Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud with war crimes and crimes against humanity in September 2019, and his trial began in 2020.
The Central African Republic II situation concerns crimes against humanity and war crimes committed – including rape, pillaging, and the use of children in combat – in the midst of renewed violence beginning in 2012. An ICC pre-trial chamber confirmed charges against Alfred Yekatom and Patrice-Edouard Ngaïssona (whose cases have been joined) for war crimes and crimes against humanity in December 2019, and their trial began in 2021. In 2021, a pre-trial chamber partially confirmed the charges against Mahamat Said Abdel Kani.
The investigation in Georgia is currently focused on alleged war crimes and crimes against humanity committed during an international armed conflict that took place between July and October 2008 in and around South Ossetia. The investigation began in 2016. No individuals have yet been charged.
The Burundi situation is under investigation, as of 2017. The investigation is focused on the alleged crimes against humanity of murder and attempted murder, deprivation of liberty, torture, rape, enforced disappearance, and persecution that occurred between April 2015 and October 2017 against those who opposed or appeared to oppose the ruling party. While Burundi withdrew from the Rome Statute, the ICC may investigate crimes that occurred within in its jurisdiction between the time it deposited its instrument of ratification of the Rome Statute, September 21, 2004, to the date its withdrawal went into effect, October 27, 2017.
The Bangladesh/Myanmar situation is currently under investigation, as of 2019. The investigation is focused on possible crimes against humanity committed – including crimes of deportation and persecution – against the Rohingya people since at least October 2016.
The Afghanistan situation has been under investigation since 2020, with regard to crimes against humanity and war crimes committed in the country since May 2003. The investigation focuses on crimes against humanity and war crimes allegedly committed in the context of an armed conflict between pro- and anti-government forces in the country. The alleged crimes include murder, imprisonment, cruel treatment, intentional attacks on civilians, and treacherously killing or injuring enemy combatants. The national mechanisms of accountability for these crimes are also under scrutiny. An ICC pre-trial chamber previously rejected the Prosecutor’s request to investigate the situation in Afghanistan. The ICC Appeals Chamber ruled on December 5, 2019 that victims lacked standing to appeal that decision; while ruling on the Prosecutor’s appeal, the Appeals Chamber authorized the investigation.
In 2021, the ICC authorized an investigation into the situation in Palestine with regard to crimes committed in the occupied Palestinian territory since June 2014. Palestinian armed groups are accused of indiscriminately firing rockets and mortars, which resulted in the deaths, injuries, and displacement of civilians. Israeli armed groups are accused of directing attacks toward civilian buildings and indiscriminately attacking civilian areas, causing hundreds of deaths. The crimes being investigated include killings, arrests, detentions, and other ill-treatment.
The situation in the Philippines has been under ICC investigation since 2021, with regard to the crime against humanity of murder in the context of the “war on drugs” in the country between November 2011 and March 2019. The ICC only has jurisdiction over crimes committed up to March 16, 2019 given that the Philippines’ withdrawal from the Rome Statue became effective on March 17, 2019, exactly a year after it was announced.
In 2021, the Prosecutor decided to conclude the preliminary examination and seek an investigation into the situation in Venezuela, with regard to crimes against humanity committed there since at least April 2017. In particular, the investigation will examine allegations that State security forces used excessive force to against demonstrators and arrested thousands, who were then subjected to ill-treatment in detention.
Status of Preliminary Examinations
Further, the ICC Office of the Prosecutor is currently conducting preliminary examinations into the below situations, as of January 2022.
The preliminary examination of Guinea was announced on October 14, 2009 and concerns allegations of crimes against humanity that occurred in Conakry, Guinea on September 28, 2009 when a peaceful rally devolved into a massacre claiming at least 150 lives. The alleged crimes include murder, severe deprivation of liberty, torture, persecution, enforced disappearances, rape, and other forms of sexual violence. The national law enforcement procedures surrounding these crimes are also under investigation.
The preliminary examination of Nigeria, which was announced in November 2010, concerns the armed conflict between the Islamic extremist group Boko Haram and Nigerian security forces since July 2002. The investigation involves allegations of multiple war crimes and crimes against humanity, which include murder and persecution. The existence and authenticity of national accountability mechanisms are also being investigated.
The preliminary examination of Ukraine concerns the alleged crimes against humanity of murder, torture, and other inhumane acts committed between November 2013 and February 2014 in the context of the “Maidan” protests, which began in Maidan Nezalezhnosti in Kiev. This series of protests represented a push for fuller integration of Ukraine into Europe. Tensions between protesters and security forces rose over time, resulting in the deaths of protesters and many injuries.
In the situation of Venezuela II, the preliminary examination concerns a 2020 referral by Venezuela regarding alleged crimes against humanity in the country resulting from coercive measures (sanctions) by the United States of America against Venezuela since at least 2014.
The preliminary examination of Bolivia concerns alleged crimes against humanity committed in the country in August 2020, in connection with blockades allegedly coordinated by members of the Movimiento al Socialismo political party, in the context of anticipated elections and the COVID-19 pandemic.