International Criminal Court

The International Criminal Court (ICC) in The Hague is a treaty-based, international criminal court established to prosecute genocide, crimes against humanity and war crimes. Although the crime of aggression is also listed, the Court’s jurisdiction in this regard is subject to a number of procedures which were agreed at the Review Conference of the Rome Statute of the International Criminal Court, convened in Kampala, Uganda from 31 May to 11 June 2010.

The Court is an independent international organisation with a special relationship with the United Nations. It is complementary to national jurisdictions in that it may only proceed with a case where a state is unable or unwilling to investigate or prosecute. The Statute of the Court, known as the Rome Statute, was adopted on 17 July 1998 and entered into force on 1 July 2002.

Because submission to the jurisdiction of the International Criminal Court entails a partial transfer to the Court of the sovereign power of the State to administer criminal justice, it was necessary to amend the Irish Constitution prior to ratification. To this end, the twenty-third amendment of the Constitution inserted Article 29.9, providing that the State may ratify the Rome Statute. Ireland has ratified the Statute and accordingly is a member of the Assembly of State Parties. In addition, an Irish lawyer, Judge Maureen Harding Clark, served as a judge of the Court in the Court's Trial Division from 2003 until 2006.

Rome Statute deals with the establishment of the Court, its jurisdiction and the general principles of criminal law to be applied. It sets out the composition of the Court and its administration, the procedures for investigation, prosecution and trial, the penalties which can be imposed on conviction, and provides for appeals.

The procedures under the Statute guarantee respect for the rights of the accused and will ensure that due process be observed. There is an obligation on the States Parties to cooperate with the Court, and provision is also made for the enforcement of the judgments of the Court and for the carrying out of sentences. The Statute, furthermore, provides for an Assembly of States Parties, as a “management oversight and legislative body”, and for the financing of the Court.

A Review Conference of the Rome Statute of the International Criminal Court was convened in Kampala, Uganda from 31 May to 11 June 2011. At that Conference it was agreed to amend the Statute in order to extend the definition of war crimes falling within the jurisdiction of the Court and in order to include provisions relating to the definition of the crime of aggression and in relation to the Court’s jurisdiction in respect of this crime.

Read the full text of the Rome Statute incorporating the amendments agreed at the Review Conference in Kampala.

Article 5 of the Rome Statute sets out that “the most serious crimes of concern to the international community” namely, the crime of genocide, crimes against humanity, war crimes and the crime of aggression are within the jurisdiction of the Court. The Court Statute provided that the Court could exercise jurisdiction over genocide, crimes against humanity and war crimes committed after the date on which the Statute enters into force.

At the time of the adoption of the Rome Statute in 1998, it was not possible to provide for the Court to exercise jurisdiction over the crime of aggression as no agreement had been reached on a provision defining the crime and setting out the conditions under which the Court could exercise jurisdiction with respect to this crime. However, the Rome Statute was amended at the Review Conference of the Rome Statute of the International Criminal Court, convened in Kampala, Uganda from 31 May to 11 June 2011. At is 13th meeting, on 11 June 2010, the Conference adopted resolution RC/Res.6 by which it amended the Rome Statute so as to include a definition of the crime of aggression and the conditions under which the Court could exercise jurisdiction with respect to the crime. The actual exercise of jurisdiction is subject to a decision to be taken after 1 January 2017 by the same majority of States Parties as is required for the adoption of an amendment to the Statute, and one year, after the ratification or acceptance of the amendments by 30 States parties, whichever is the later.

The definitions of genocide, crimes against humanity and war crimes contained in the Statute codify existing international law.

Genocide

The definition of genocide is identical to that contained in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. It involves the following acts when committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group: killing or causing serious bodily or mental harm to members of the group, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, imposing measures to prevent births within the group or forcibly transferring children of the group to another group.

Crimes against humanity

The concept of crimes against humanity also embraces particularly serious violations of human rights - violations such as murder, extermination, slavery, forcible transfer of population, unlawful imprisonment, torture, sexual violence, persecution of a group, enforced disappearance and apartheid - when committed as part of a widespread or systematic attack directed against the civilian population. Crimes against humanity can be committed in time both of war and of peace.

War crimes

War crimes include grave breaches of the four Geneva Conventions of 1949 which provide for the care of wounded and sick members of the armed forces, the treatment of prisoners of war and the protection of civilians in time of armed conflict. Further examples of war crimes, for the purpose of the Rome Statute, include attacks during armed conflict against civilians, and against humanitarian and peacekeeping missions, attacks directed against religious, educational and cultural buildings, pillaging, rape, sexual slavery and enforced prostitution and the use of child soldiers. At the Review Conference of the Rome Statute of the International Criminal Court, convened in Kampala, Uganda from 31 May to 11 June 2011, the Conference, at is 12th meeting, on 10 June 2010, adopted resolution RC/Res.5 by which it amended the Rome Statute to bring under the jurisdiction of the Court the war crimes of employing poison or poisoned weapons, employing asphyxiating, poisonous or other gases, and all analogous liquids, materials and devices, and employing bullets which expand or flatten easily in the human body, when committed in armed conflicts not of an international character. These crimes already fell within the jurisdiction of the Court as serious violations of the laws and customs applicable in international armed conflict.

Crime of aggression

The definition of the crime of aggression is based on United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, and in this context includes a crime committed by a political or military leader which by its character, gravity and scale constitute a manifest violation of the Charter of the United Nations.

The International Criminal Tribunal for the former Yugoslavia (ICTY) was established by UN Security Council Resolution 827 (1993) as a response to serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991, and the threat to international peace and security which they posed.

The ICTY has authority to prosecute four categories of offences, committed on the territory of the former Yugoslavia since 1991:

• grave breaches of the 1949 Geneva Conventions
• violations of the laws or customs of war
• genocide
• crimes against humanity

An Irish lawyer, Judge Maureen Harding Clark has served as an ad litem judge on the Tribunal.

The ICTY was established to respond to the particular circumstances of the former Yugoslavia as an ad hoc measure to contribute to the restoration and maintenance of peace. As it had completed much of its work, and as the time for its closure approached, it was acknowledged that there was a need to establish an ad hoc mechanism to carry out a number of essential functions of the ICTY, which will diminish over time. Therefore, the United Nations Security Council decided, by resolution 1966 (2010) adopted on 22 December 2010, to replace the ICTY with a Residual Mechanism which took over a number of functions of ICTY as of 1 July 2013. This mechanism is called the United Nations Mechanism for International Criminal Tribunals (MICT), and it had previously taken over a number of the functions of the International Criminal Tribunal for Rwanda. MICT is responsible for any essential competences and functions of the ICTY in relation to all completed cases and any cases that may be brought before it (MICT has the power to prosecute, supervise sentences, deal with the protection of witnesses, issue and receive requests for co-operation and assistance and to manage archives).

The International Criminal Tribunal for Rwanda (ICTR) was established by UN Security Council Resolution 955 (1994) as a response to serious violations of humanitarian law committed in Rwanda and neighbouring states, and the threat to peace and security which they posed.

The ICTR has authority to prosecute genocide, crimes against humanity, and violations of Article 3 common to the Geneva Conventions and of Additional Protocol II, committed between 1 January and 31 December 1994 by Rwandans in the territory of Rwanda and in the territory of neighbouring States, as well as non-Rwandan citizens for crimes committed in Rwanda.

The ICTR delivered the first ever decision by an international tribunal on the crime of genocide and convicted, for the first time, a former head of state for the crime of genocide. In addition, the case law of the Tribunal has particularly contributed to the treatment of sexual offences in international criminal law.

The ICTR was established to respond to the particular circumstances in Rwanda as an ad hoc measure to contribute to the restoration and maintenance of peace. As it had completed much of its work, and as the time for its closure approached, it was acknowledged that there was a need to establish an ad hoc mechanism to carry out a number of essential functions of the ICTR, which will diminish over time. Therefore, the United Nations Security Council decided, by resolution 1966 (2010) adopted on 22 December 2010, to replace ICTR with a Residual Mechanism which took over a number of functions of the ICTR with effect on 1 July 2012. This mechanism is called the United Nations Mechanism for International Criminal Tribunals (MICT), and it also took over a number of the functions of the International Criminal Tribunal for the former Yugoslavia, with effect on 1 July 2013. The purpose of MICT is to take over any essential competences and functions of the ICTR in relation to all completed cases and any cases that may be brought before it (MICT has, the power to prosecute, supervise sentences, deal with the protection of witnesses, issue and receive requests for co-operation and assistance and to manage archives).

Statement by the Minister for Foreign Affairs to the Dáil on the 23rd Amendment to the Constitution Bill, 2001.

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