The International Criminal Court
The ICC, head-quartered in The Hague, is the first permanent international criminal court. It was created by the Treaty of Rome, adopted on 17 July 1998 by the Diplomatic Conference of Plenipotentiaries of the United Nations and entered into force in 2002 1
What crimes are sanctioned?
The crimes within the jurisdiction of the ICC are defined in Articles 5 and following of the Rome Statute: genocide, crimes against humanity, war crimes and the crime of aggression. This list also includes certain crimes against the administration of justice (art. 70 and 71).
The jurisdiction of the ICC is limited to four core types of crimes that affect the entire international community, considered the most serious. These are:
- The crime of genocide, defined in Article 6 of the Statute;
- Crimes against humanity (Article 7 of the Statute);
- War-crimes (Article 8 of the Statute); and
- The crime of aggression, (Article 8 bis of the Statute) 2 .
Article 6 stipulates that the crime of genocide means any of the following acts committed with an intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such:
- Killing members of the group;
- 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 intended to prevent births within the group;
- Forcibly transferring children of the group to another group.
Crimes against humanity consist in acts committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack such as murder, extermination, enslavement, torture. The list of Article 7 is not exhaustive.
The ICC also has jurisdiction to try persons suspected of war crimes, in particular when those crimes are part of a plan or policy or as part of a series of similar crimes committed on a large scale (art. 8). The Statute defines a war crime in Article 8. It lists 50 offences including rape, deportation and sexual slavery.
The crime of aggression also falls within the jurisdiction of the Court. During the Review Conference in June 2010 in Kampala, Uganda, a resolution was voted to amend the Rome Statute in order to include a definition of the crime of aggression based on the UNGA Resolution 3314 (XXIX) of 14 December 1974, which defines aggression as a “crime committed by a political or military leader which, by its character, gravity and scale constituted a manifest violation of the Charter.” 3 The resolution entered into force on 17 July 2018 for ICC member states which have ratified both the Rome Statute and the amendments on the crime of aggression. The resolution indicates that the ICC does not have jurisdiction over ICC member states, or their nationals, that have not ratified these amendments in the case of a state referral or proprio motu (initiated by the ICC prosecutor) investigation. “However, ICC judges maintain their independence in ruling on jurisdictional matters and referrals from the UN Security Council have no jurisdictional limitations.” 4
The crimes over which the court has jurisdiction are not subject to any statute of limitations (Article 29). This means that there is no maximum time after the Commission of the crime to initiate legal proceedings (upon condition that the crime ocurred after 2002 and/or the date of ratification of the ICC Statute by the State. See infra).
Over whom does the ICC have jurisdiction?
- The statute provides that the Court has jurisdiction only over individuals. legal entities, such as businesses, are therefore currently excluded from the jurisdiction of the icc. However, it remains possible to individually prosecute the directors of a company.
- The ICC has jurisdiction over the authors, co-authors, principals, instigators, accomplices
“The different types of liability recognized are individual liability (author), co-liability (’jointly with another person’), and indirect liability (’through another person’)” (art.25. 3.a). 5 Because international crimes typically involve several persons, Article 25 of the Statute stipulates that the ICC has jurisdiction not only in respect of any individual who actually committed a crime provided for under the Statute (direct perpetrator), but also against all those who have intentionally ordered such crimes, solicited or induced others to commit them or provided the means therefore. 6
n this respect the Rome Statute provides for the responsibility of commanders and other superiors, according to which a superior shall be criminally responsible for crimes committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates (Article 28, b).
The Rome Statute opts for a broad definition of complicity. Indeed, an individual will be criminally liable if he/she:
- Orders, solicits or induces the Commission of such a crime which in fact occurs or is attempted (Art. 25, 3, B), or
- For the purpose of facilitating the Commission of such a crime, aids, abets or otherwise assists in its Commission or its attempted Commission, including providing the means for its Commission; (Art. 25, 3, C).
Article 25.3.D also specifies that a person who contributes in any way to the Commission or attempted Commission of a crime by a group of persons acting in concert will be convicted. This contribution must be intentional and either be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the Commission of a crime within the jurisdiction of the Court, or be made in the knowledge of the intention of the group to commit the crime. 7
- The defendants must be at least 18 years old at the time of the alleged commission of a crime (s. 26)
- there are several grounds for excluding criminal responsibility (art. 31).
An individual shall not be held criminally liable where:
- the person suffers from a mental disease or defect that destroys that person’s capacity to appreciate his conduct, or
- the person acts reasonably to defend himself or herself or another person, or
- the person was acting under duress or a threat.
The official capacity of the suspect is not a ground for exoneration (art. 27): the immunity which may benefit certain persons (such as agents of state entities) is inadmissible before the Court.
What about the complicity of individuals implicated in the Commission of international crimes committed by or with the complicity of a company?
Article 25.3.c) of the Statute of the ICC could, inter alia, apply to these persons (see above). In a press release dated September 26, 2003, the Prosecutor of the ICC drew attention to a certain number of connections between crimes committed in Ituri (Democratic Republic of Congo) and several companies in Europe, Asia and North America, the illegal exploitation of resources in eastern DRC allowing for the financing of the conflicts in this region. The Prosecutor, Mr. Ocampo stated that his own investigations on violations of human rights in the DRC were based on the successive reports of the group of UN experts regarding the illegal exploitation of natural resources and other forms of wealth in the Democratic Republic of Congo, 8 reports that sought to identify the role of business in the perpetuation of conflicts. In his statement, Mr. Ocampo explained that “The investigation of the financial aspects of war crimes and crimes against humanity is not a new idea. In the aftermath of the Second World War, German industrialists were prosecuted by the Nuremberg Military Tribunals for their contribution to the Nazi war effort. One of these Tribunals held that it was a settled principle of law that persons knowingly contributing – with their influence and money – to the support of criminal enterprises can be held responsible for the Commission of such crimes.” 9
Nevertheless, the first cases involving crimes committed in the north and east of the country do not show any real consideration for the complicity of the economic actors in the Commission of the alleged crimes.
Who can trigger the jurisdiction of the ICC?
The Prosecutor may initiate investigations and prosecutions in three possible ways (art.13):
- States Parties to the Statute can refer situations to the Prosecutor;
- The Security Council of the United Nations may ask the Prosecutor to open an investigation into a situation;
- The Prosecutor may initiate investigations proprio motu on the basis of information received from reliable sources;
- Non-party States to the Statute may also refer to the Prosecutor.
“Situation” means “the context of developments in which it is suspected that” a crime within the jurisdiction of the Court “has been committed.” 10
The referral of a situation to the Court by a State Party (Art. 14)
State Party may ask the Prosecutor to open an investigation into a particular situation. This possibility is granted only to States that have ratified the Rome Statute. Non-party states may, however, inform the prosecutor of certain crimes that have been committed, so that he can act proprio motu. 11 The state that has referred a situation to the Prosecutor must attach to the referral certain information that can serve as evidence.
The referral of a situation to the Court by the Security Council (Art. 13.b)
The Security Council must act with intent to prevent a threat to peace and security (Chapter VII of the UN Charter). In this case, the ICC has jurisdiction even though the crimes were committed on the territory of a non party State (i.e. that has not ratified the Rome Statute) or by a national of any such State. The only requirement is that the situation involves a “threat to peace and security”. 12
Following these two types of referrals, the Prosecutor shall decide to initiate an investigation if he considers there is a reasonable basis to proceed under the Rome Statute.
The opening of an investigation by the Prosecutor acting on his own initiative (Art. 15)
The Prosecutor of the ICC has the authority to refer a situation on his own initiative. The successful opening of such an investigation however, is conditioned upon the approval of a Pre-Trial Chamber (composed of three judges). In the event the Chamber considers that the evidence is insufficient and therefore does not provide its authorization, the Prosecutor may submit a new application later on the basis of facts or new evidence. 13 However, if the authorization of the Pre-Trial Chamber is granted, the Prosecutor shall notify the opening of his investigation to all States Parties and the states concerned. They then have a period of one month (from receipt of the service) to notify the Prosecutor if proceedings have already been introduced at national level.
To determine whether to initiate an investigation, the Prosecutor will seek relevant information from credible sources such as states, intergovernmental organisations, or UN bodies. At this stage of the proceedings, victims and NGOs may provide the Prosecutor with information that will help determine whether there are grounds to initiate an investigation.
They can also do so to contribute to the ongoing investigations and prosecutions.
Over the years, FIDH has provided information to the Office of the Prosecutor regarding a number of situations. In particular, FIDH has submitted information regarding the responsibility of economic actors cases in Colombia (the “Chiquita case”) and Cambodia.
The contribution of Chiquita corporate officialsto crimes against humanity in Colombia
In 2017, FIDH, the International Human Rights Clinic at Harvard Law School, and the Corporación Colectivo de Abogados José Alvear Restrepo (CAJAR) submitted information to the Prosecutor of the ICC regarding alleged crimes against humanity committed in Colombia by executives at Chiquita Brands International. 14 While the ICC had opened a preliminary examination on the situation in Colombia on June 2004 15 , to date no investigation has been opened, and no one has been held to account. Moreover, the company has admitted that it funnelled millions of dollars to Colombian paramilitaries that killed, raped, and disappeared civilians. If the ICC decides to open an investigation on Colombia and includes under its scope the conduct of Chiquita executives, it would be the first time that any corporate executive has come under investigation for assisting crimes against humanity.
In their submission to the Court, the coalition of local and international human rights groups traces the executives’ involvement with payments made to the paramilitaries between 1997 and 2004. Even after outside counsel and the U.S. Department of Justice said such payments were illegal under U.S. law, the payments continued. The submission includes a confidential, sealed appendix that identifies by name fourteen senior executives, officers, and board members of Chiquita whom the coalition argues should be the focus of the Prosecutor’s investigation. The coalition , relied on internal Chiquita documents and assistance from the National Security Archive at George Washington University to identify the Chiquita officials and show how they were involved with the crimes. Chiquita could have acted differently, or could have left the country years before it did, but instead decided to continue its lucrative business while paying paramilitaries for so-called ’security’ in the banana-growing regions. By 2003, Chiquita’s subsidiary in Colombia was its most profitable banana operation in the world.
Systematic land grabbing in Cambodia conducted by the ruling elite as a crime against humanityIn 2014 and 2015, pursuant to Article 15 of the Rome Statute, Global Diligence LLP, with the backing of FIDH and Global Witness, submitted communications to the ICC alleging that widespread and systematic land grabbing conducted by the Cambodian ruling elite for over a decade amounted to a crime against humanity. 16
The communications, submitted on behalf of individual Cambodian victims, contend that senior members of the Cambodian government, its security forces, and government-connected business leaders carried out an attack on the civilian population with the objectives of self-enrichment and preservation of power at all costs. Crimes committed as part of this campaign include murder, forcible transfer of populations, illegal imprisonment, persecution, and other inhumane acts. Over the period of 14 years, an estimated 770,000 people (6% of the country’s population) were adversely affected by land grabbing in Cambodia, with over 145,000 people forcibly transferred from the capital, Phnom Penh, alone. Indigenous minorities suffered disproportionately, with half their population already excluded from ancestral land.
Land grabbing is the harbinger for illegal resource exploitation, persecution of indigenous people, and environmental destruction. Over a quarter of Cambodia’s ancient rainforests have been destroyed during the ICC’s short lifetime. If the Prosecutor opens a preliminary examination into the situation in Cambodia, the ICC would be tackling the climate and environmental crisis, and holding to account business leaders and other powerful individuals who were involved in the commission of these crimes.
The referral of a situation to the Court by a non party state (art.12.3)
Non party States may refer a situation to the Prosecutor by means of an ad hoc declaration accepting the jurisdiction of the Court, as was the case for the Ivory Coast or more recently Palestine, when the government made a statement accepting the jurisdiction of the Court in 2005 for crimes committed since June 13, 2014.
Under what conditions?
The location of the Commission of the crime and the nationality of the accused
If the crime was committed on the territory of a non party state or by a national of a non party state, the Court shall in principle not have jurisdiction over this crime. However, the non party state may recognize the jurisdiction of the Court on an ad hoc basis (12.3). It will therefore also have jurisdiction where a non-party state to the Rome Statute has consented to the exercise of its jurisdiction over a crime committed on its territory or by a national thereof. 17
A situation may also be referred by the Security Council of the United Nations, under Chapter VII of the UN Charter.
The jurisdiction of the Court can be exercised only if:
- The accused is a national of a State Party or a state that otherwise has accepted the jurisdiction of the Court
- The crime was committed on the territory of a State Party or a state that otherwise has accepted the jurisdiction of the Court
- The UN Security Council referred the situation to the Prosecutor, regardless of the nationality of the suspect or where the crime was committed.
The principle of complementarity (Art. 17)
The ICC is not intended as a substitute for national courts. The obligation to prosecute genocide, crimes against humanity and war crimes rests primarily with national courts, the ICC intervenes only in cases of failure on their part or their state. The ICC is therefore complementary to national criminal jurisdictions. Therefore, it can prosecute and try persons, only where no national court has initiated proceedings or where a national court has affirmed its intention to do so but in reality lacks the will or ability to conduct such prosecutions. Lack of will is established where a state is trying to shield the person concerned from criminal responsibility for crimes within the Court’s jurisdiction, or is conducting a mock trial in order to protect the person suspected of crimes, either by delaying the procedure or by conducting a biased procedure. 18 Inability will be established when the state’s judiciary has collapsed, disintegrated during an internal conflict, preventing the gathering of sufficient evidence.
The jurisdiction of the Court intervenes as a last resort. 19 This principle allows national courts to be the first to investigate or initiate prosecutions.
The date of the facts
The ICC has jurisdiction only over crimes committed after the entry into force of the Rome Statute, i.e. after 1 July 2002.
For states which became parties to the Statute after this date, the ICC’s jurisdiction will apply only to crimes committed after their ratification thereof. Article 124 of the Statute also allows a state that becomes a party to the Statute to defer the implementation of the Court’s jurisdiction over war crimes for seven years. This article was deleted by the Review Conference in 2015. 20
The victim’s role at the ICC
The Rome Statute grants victims a central role in the justice process and contains broad participatory rights for victims in criminal proceedings. This inclusion stemmed from the need to address the invisibility of victims in other international criminal trials where victims’ main way to interact with the justice process was as witnesses. This recognition of victims’ rights underlines that respect for the rule of law plays a central role in rebuilding societies, and that having members of the communities individually engaged with rule of law processes can significantly contribute to social reconstruction 21
The concept of the victim
Article 85 of the Rules of Procedure and Evidence defines the term “victim” rather broadly. This definition defines the physical victim extensively to include also indirect victims 22 :
- Any individual who has suffered harm as a result of the Commission of a crime within the jurisdiction of the Court;
- Any organisation or institution, the property which is dedicated to religion, education, arts, science or charitable purposes, a historic monument, hospital and other premises used for humanitarian purposes that has suffered direct harm.
Unlike the definition of private individual victims, the definition of legal entity victims is restrictive. An association that does not meet the criteria of Article 85 shall not be able to assist victims on the basis only of its activities.
Regarding the damages, it is the role of the judge to determine, in a case-by-case basis, those to be taken into account, it being understood that these include damage to the integrity of the person, both physical and psychological, and material damages.
Victims participation at the ICC.
FIDH supports affected individuals’ access to the ICC and victims’ participation in proceedings before the Court. Victims may send information to the Prosecutor of the ICC, regarding crimes within the jurisdiction of the Court, so that s/he may decide whether there are sufficient grounds on which to prosecute and the possibility of opening an investigation. 23 They can thus intervene by submitting their views or information at any moment, even before the opening of a preliminary examination . The Prosecutor shall take into account their interests, particularly where s/he decides to prosecute. 24 They also have the right to participate in the proceedings (Article 68 of the Statute, which defines the conditions for the participation of victims in the proceedings, provides that “Where the personal interests of victims are concerned, the Court shall permit their views and concerns to be presented and considered at stages of the procedure it considers appropriate…”) and claim for reparation. 25
Victims may also submit observations to the Court in an action challenging the jurisdiction of the ICC or the admissibility of prosecution. 26
In domestic law, the rulings of the ICC “have the authority of res judicata”: the victims are entitled to plead before a domestic court for redress.
Any possibilities for the ICC to have jurisdiction over companies as moral persons?
During the preparatory work of the Rome Statute, certain debates have indeed focused on the criminal liability of moral persons (legal entities). The draft statute for the creation of an international criminal court prepared by M.C. Bassiouni 27 stated in Article XII that the court would have jurisdiction to try the “individuals”. In this proposal, the term “individuals” was used in its broadest sense and applied equally to natural and moral persons. As for the draft statute submitted by the International Law Commission, the term “persons” referred to in the text suggested a reference to natural persons only. 28
The report of the Preparatory committee for the creation of an international criminal court in 1996, contains proposals relating to the inclusion of companies, the principal of which was a recommendation for the international court to have jurisdiction on the: “ criminal liability [.. .] of legal entities, with the exception of states, when the crimes were committed in the name of the legal entity or its agencies and representatives”. 29
Certain delegations expressed reservations about these proposals, arguing that it would be more useful to limit the jurisdiction of the Court to individuals, especially as the companies are controlled by natural persons.
At the Diplomatic Conference of Plenipotentiaries of the United Nations on the establishment of an International Criminal Court held in Rome from June 15 to July 17, 1998 30 , France proposed to include the notion of criminal organisations and companies as legal entities in the Statute. 31
The participating states were largely opposed thereto, citing the primary objective of the proposed ICC, which is to try natural persons responsible for international crimes, and practical reasons such as: the definition of legal entities varies from state to state, the principles of complementarity and subsidiarity would meet with opposition from certain national legal systems that have limited legislation on the criminal liability of legal persons and the fact that the Court would face significant difficulties in gathering evidence.
Some delegations seeking to find a middle ground, proposed that the court should have jurisdiction over the civil or administrative liability of legal persons. This proposal was hardly discussed.
Despite the position and hope of certain civil society representatives, the inadmissibility of actions brought against corporations was not put on the agenda during the Review Conference of the Rome Statute held in Kampala in May / June 2010.
In addition, several Protocol proposals, never achieved, were filed in order to create an international tribunal with jurisdiction over legal persons in particular over corporations. 32 Many civil society groups continue to lobby for the creation of such a tribunal. 33