How the International Criminal Court decides who is prosecuted
The International Criminal Court (ICC) sits in The Hague, in the Netherlands, and is the world's permanent tribunal for the most serious crimes of international concern. It does not try countries. It tries individuals, and only when strict legal conditions are met. This guide explains who can be prosecuted, when the court can act and how a case moves from investigation to verdict.
What the court is and where its powers come from
The ICC was created by the Rome Statute, a treaty adopted in July 1998 that came into force on 1 July 2002. It is separate from the United Nations, although the two cooperate. It is also distinct from the International Court of Justice, which settles disputes between states rather than judging individuals.
More than 120 countries are states parties to the treaty. Several major powers, including the United States, Russia, China and India, are not. That fact shapes where the court can operate.
Which crimes the ICC can hear
The court's jurisdiction covers four categories of crime:
- Genocide: acts committed with intent to destroy a national, ethnic, racial or religious group, in whole or in part.
- Crimes against humanity: serious acts, such as murder, enslavement, torture or persecution, committed as part of a widespread or systematic attack on civilians.
- War crimes: grave breaches of the laws and customs of armed conflict, including attacks on civilians and the mistreatment of prisoners.
- The crime of aggression: the planning or launching of an act of aggression by a state, by a person in a position to direct its political or military action. The court's powers over this crime became active in July 2018 and are narrower than for the other three.
The court can only deal with conduct that took place on or after 1 July 2002, or after the date a state joined, whichever is later.
Who can be prosecuted
Individuals, not states
Only natural persons aged 18 or over at the time of the alleged offence can be charged. Companies, armed groups as organisations and governments are outside its reach, though the people who lead them are not.
Rank is no shield
The Rome Statute states that official capacity is irrelevant. A head of state, minister or member of parliament has no immunity before the court under the treaty. Commanders and civilian superiors can also be held responsible for crimes by forces under their effective control if they knew, or should have known, and failed to act.
In practice, the most senior suspects
The Office of the Prosecutor generally concentrates on those who appear to bear the greatest responsibility, given the number of possible cases and the court's limited resources. Everyone charged is presumed innocent until the prosecution proves guilt.
When the court has jurisdiction
Jurisdiction depends on a link to the court's membership. It arises in three main ways:
- The alleged crime took place on the territory of a state party.
- The suspect is a national of a state party.
- The UN Security Council refers a situation to the court, which can reach non-member states.
A state that is not a party can also accept the court's jurisdiction for a specific situation by lodging a declaration.
The principle of complementarity
The ICC is a court of last resort. Under the principle of complementarity, national courts have the first right to prosecute. The ICC may step in only where a state is unwilling or genuinely unable to carry out proceedings, for example because its justice system has collapsed or because trials are designed to shield a suspect. A case must also be of sufficient gravity.
How a case proceeds
Investigation
The Prosecutor begins with a preliminary examination to assess whether the legal criteria are met. An investigation may then open after a referral by a state party or the Security Council, or on the Prosecutor's own initiative with approval from judges of the Pre-Trial Chamber.
Warrants and first appearance
If the evidence supports it, the Prosecutor asks the judges for an arrest warrant or a summons to appear. The ICC has no police force and relies on states to make arrests and surrender suspects. Many warrants have remained unexecuted for years for that reason. After surrender, the suspect makes an initial appearance, where identity and rights are confirmed.
Confirmation of charges and trial
A confirmation hearing then decides whether there is enough evidence to justify a trial. If charges are confirm