International Criminal Court
The International Criminal Court, which has its seat in The Hague, Netherlands, was inaugurated in 2002.
The ICC has the competence to try individuals for the crimes of genocide, crimes against humanity and war crimes, when those individuals are nationals of one of the 123 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 alleged crimes 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.
The ICC’s competence to try individuals for the crime of aggression has been under debate 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. As of February 2018, 35 States have ratified the “Kampala amendments.” They are: Andorra, Argentina, Austria, Belgium, Botswana, Chile, Costa Rica, Croatia, Cyprus, Czech Republic, El Salvador, Estonia, Finland, Georgia, Germany, Iceland, Latvia, Liechtenstein, Lithuania, Luxembourg, Macedonia, Malta, Netherlands, Palestine, Panama, Poland, Portugal, Samoa, San Marino, Slovakia, Slovenia, Spain, Switzerland, Trinidad and Tobago, and Uruguay. Although the amendments have now been ratified by over 30 States – a requirement for the amendments to enter into force – the ICC cannot exercise jurisdiction over crimes of aggression until July 17, 2018, according to the Assembly of States Parties December 2017 resolution that activated the ICC’s exercise of jurisdiction over crime of aggression.
To date, the ICC Prosecutor has initiated investigations into eleven “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 Democratic Republic of the Congo
- the Central African Republic
- Sudan (Darfur)
- Côte d’Ivoire
- the Central African Republic II
Status of Cases and Investigations
Dominic Ongwen, an alleged commander of the Lord’s Resistance Army (LRA) in Uganda is in ICC custody. His trial started in December 2016. He has been charged with 70 counts of crimes against humanity and war crimes. At least two other suspects remain at large.
Trials have concluded in the situation of the Democratic Republic of the Congo against Thomas Lubanga Dyilo, convicted of enlisting and conscripting children under the age of 15 into the Patriotic Forces for the Liberation of the Congo (FPLC), and, Germain Katanga and Mathieu Ngudjolo Chui, both charged with war crimes and crimes against humanity, including murder, rape, and sex slavery. Katanga was convicted, but Ngudjolo was acquitted. An additional DRC defendant, Callixte Mbarushimana, was released from ICC custody after the pre-trial chamber declined to confirm the charges against him. The trial of Bosco Ntaganda is currently underway, while the final DRC defendant, Sylvestre Mudacumura, remains at large.
The five 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. 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. Four suspects – Muhammad Harun (“Ahmad Harun”), Ali Muhammad Ali Abd-Al-Rahman (“Ali Kushayb”), current 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 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 Court ordered Bemba’s interim release.
With regard to Kenya, the Trial Chamber decided to terminate the case against William Samoei Ruto and Joshua Arap Sang in April 2016. 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, Paul Gicheru, and Philip Kipkoech Bett are wanted by the ICC in connection with witness tampering.
In the situation of Libya, the ICC pre-trial chamber has determined the case against Abdullah Al-Senussi to be inadmissible because his liability is currently being determined by appropriate domestic proceedings, although the pre-trial chamber seeks to retain jurisdiction over the case against Saif Al Islam Gaddafi. The proceedings against former Libyan ruler Muammar Gaddafi were terminated upon his death.
With regard to the Côte d’Ivoire cases, the joint trial against former President Laurent Gbagbo and Charles Blé Goudé began in January 2016. Both are charged as indirect co-perpetrators of crimes against humanity. Simone Gbagbo, wanted on similar charges, is not yet in ICC custody.
In the situation of Mali, the trial against Ahmad Al Faqi Al Mahdi concluded in September 2016. He was sentenced to 9 years’ imprisonment. Mahdi was convicted of the war crime of intentionally attacking historic and religious sites.
The Central African Republic II situation is currently under investigation. Investigations are focused on the alleged 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.
Investigations in Georgia are currently focused on alleged war crimes and crimes against humanity committed during an international armed conflict that took place between July and October 2008.
The Burundi situation is currently under investigation. Investigations are 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.
Further, the ICC Office of the Prosecutor is conducting preliminary investigations into the following situations, as of February 2018.
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 into Colombia, which began in June 2004, concerns alleged crimes against humanity committed since November 2002 and alleged war crimes committed since November 2009. The alleged crimes occurred in the context of armed conflict among government forces, paramilitary groups, and rebel groups. The crimes include murder, imprisonment, torture, rape, outrages on personal dignity, taking of hostages, and using children to engage in hostilities. The national proceedings 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.
This preliminary examination concerns the alleged war crimes perpetrated by nationals of the United Kingdom in the context of the occupation of Iraq from 2003 to 2008. These crimes include murder, torture, and other ill-treatment at the hands of United Kingdom personnel throughout Iraqi territory. Although the preliminary examination of Iraq was initially closed in February 2006, it was reopened in May 2014 at the discovery of new information.
The preliminary examination of Palestine concerns crimes allegedly committed by armed groups in Palestinian territory since June 2014, stemming from the Israeli-Palestinian conflict. 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 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.
The preliminary examination in Gabon was announced on September 29, 2016 and concerns alleged crimes committed there beginning in May 2016, including those related to the presidential election of August 2016. Violence ensued when incumbent Ali Bongo defeated opponent Jean Ping for the presidency, an outcome many have attributed to voter fraud. The violence has resulted in multiple deaths and hundreds of arrests so far.
Afghanistan became the subject of a preliminary examination in 2017. 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 since May 2003. 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.
The preliminary examination into alleged crimes committed during demonstrations and related to political unrest since April 2017 in Venezuela was announced on February 8, 2018. 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.
The ICC maintains an online calendar for the current week and weeks ahead.