The ICRC and the International Criminal Court

War crimes on a large scale have been a reality for centuries, as has impunity. States already have the legal obligation to prosecute suspected perpetrators of these crimes, but because of unwillingness or inability often fail to carry out investigations or prosecutions.

This cycle of impunity must be stopped. In this context it is important that the negotiations currently taking place lead to a widely accepted and effective international criminal court (ICC). The UN has been considering the establishment of an ICC since its creation and now seems to be nearing its goal. A Preparatory Committee, with more than 100 participating countries, has been set up to work on a draft statute.

In parallel, the two ad hoc international criminal tribunals for the Former Yugoslavia and Rwanda were created by the UN Security Council respectively in February 1993 and November 1994. The aim was to put an end to violations of international humanitarian law (IHL) and to contribute to the restoration and maintenance of peace.

These ad hoc tribunals undoubtedly represent a major development for the repression of violations of IHL. Moreover they send a signal to both the perpetrators and the victims that such conduct will no longer be tolerated. The establishment of a permanent ICC is the next step towards enhancing the effective prosecution and suppression of crimes of international concern.

Yet the creation of an ICC is not enough: most importantly the ICC needs to be empowered to take adequate and effective action to fulfill its mandate.

The ICC is not intended to take over jurisdiction exercised by national courts: it will exercise its jurisdiction only when trial procedures in national criminal justice systems will not be available or will be ineffective while states will continue to have the primary duty to prosecute, the ICC will complement national criminal courts.

ICRC’s position on the ICC

In the course of its work, the ICRC too often witnesses atrocities and their effects on victims. The ICRC believes that a permanent ICC could contribute to deterring future war crimes. In addition, the ICRC has been mandated by States to promote respect for international humanitarian law, which includes the development of better mechanisms to do so. This explains the ICRC’s active participation in the work of the Preparatory Committee.

Four key points are elaborated here: the definition of war crimes, the exercise of jurisdiction of the court and the roles of the Security Council and Prosecutor.

On the first point, the ICRC strongly supports the ICC jurisdiction over war crimes, crimes against humanity and genocide which are crimes already recognised as such under existing international law.

In particular, the Court should have jurisdiction over war crimes committed in both international and non-international armed conflicts, given that the majority of conflicts today are internal. As the tribunal for the Former Yugoslavia stated, “what is inhumane, and consequently prohibited, in international wars, cannot but be inhumane and inadmissible in civil strife.” The ICC should have jurisdiction over serious violations of the 1977 Protocols I and II additional to the Geneva Conventions. Most States (150 and 142 respectively) are party to these treaties, and most of their provisions are customary.

Also on the issue of war crimes, some States would like to restrict the jurisdiction of the Court to these crimes only when they are committed as part of a plan or policy, or on a large scale.

Yet under existing law, unlike crimes against humanity or genocide, each individual act which is a serious violation of humanitarian law can constitute a war crime; no specific threshold is required. Therefore suggestions that the Court should have jurisdiction over war crimes only when a certain threshold is reached would weaken existing law. It is important to recall that the ICC will exercise its jurisdiction only when national jurisdiction will have failed to do so.

Thus, the Court needs to be given the same powers as states to prosecute war crimes if these states have failed to fulfill their duty. The ICRC strongly believes that adding a threshold would unnecessarily narrow the scope of the Court, would add to confusion between crimes against humanity and war crimes, and would represent a step backwards for existing law.

The second point regards the exercise of jurisdiction by the ICC. Some States are of the view that the Court would exercise its jurisdiction in a particular case only after the consent of certain States is obtained. Consent would be required of the custodial State (the State having custody of the suspect), the territorial State (the State on whose territory the act was committed), the States of nationality of the accused and of the victims.

Needless to say, these requirements could become insurmountable hurdles for the Court in the exercise of its jurisdiction. As soon as a State becomes party to the statute of the ICC, and when national trial procedures are not available or are ineffective, the Court should automatically have jurisdiction. This would only give the Court the same powers that States already have.

Under the existing principle of universal jurisdiction, any State has the right to prosecute persons alleged to have committed war crimes and consent is not required from any other State.

This principle reaffirms the fundamental rule that war criminals are not immune from prosecution, no matter where they have committed their crimes and regardless of their nationality. The introduction of a ‘State consent’ regime would not only pave the way for an ineffective Court but, more seriously, give the impression that States can lawfully protect war criminals from prosecution. This would amount to a clear and totally unacceptable step back from well-established existing law.

The third point concerns the role of the Security Council in connection with the ‘trigger mechanism’. Some States are in favour of providing that, when the Security Council is dealing with a situation under Chapter VII of the Charter, no prosecution arising from that situation may be commenced unless the Security Council decides otherwise.

In short, this provision would give the Security Council the power to halt investigations or prosecutions. It seems difficult however to reconcile the principle of an independent and impartial court with the fact that, in certain cases, the Court could be subordinated to a prerogative conferred upon the Security Council.

The last point concerns the role of the Prosecutor when no referral is made by either a State or by the Security Council. There is at present general agreement that States and the Security Council will be given the power to refer a case or a situation to the Court.

Yet the question remains as to whether the Prosecutor would also be given the right to investigate cases without having to wait for such a referral. For the ICRC, the Prosecutor should be empowered to initiate investigations and institute proceedings ‘ex officio’, on her or his own initiative. In addition to giving the Court greater impartiality and independence, such powers given to the Prosecutor would also allow for the better protection of evidence.

The ICRC hopes that States will show a firm political will to establish an independent and efficient international criminal court.