Update: 27.06.2019

Rome Statute of the International Criminal Court

Of 17 July 1998 (entry into force 1 July 2002)

Text of the Treaty: Englisch / German / French / Italian

Between 15 and 17 July 1998, a diplomatic conference adopted the Rome Statute of the International Criminal Court which entered into force with the ratification by the 60th state. Currently, the Rome Statute has been accepted by 122 parties, after Burundi and the Philippines have withdrawn their ratification (as of 17 June 2019, current count). Superpowers such as the USA, Russia, China and India have not yet ratified the Rome Statute.

The Rome Statute lays the foundations for the criminal liability of individuals (not of states) on committing one or several of the four core international crimes: genocide, crimes against humanity, war crimes, and the crime of aggression (see below). The individual liability of persons committing these core crimes has improved the implementation of international human rights law and international humanitarian law in armed conflicts and in so-called failed states.

The Rome Statute defines international war crimes and stipulates general principles of criminal law as well as norms related to the setting up, organisation and function of the International Criminal Court (ICC).

General part of international criminal law

Arts 22 to 33 of the Rome Statute address general principles of criminal law, for example «nullum crimen sine lege» (no crime without prior law), «nulla poena sine lege» (no punishment without law), the prohibition on retroactivity and mistake of fact or mistake of law. Further issues addressed are the degree of responsibility, command responsibility, requirement of intent and knowledge, and superior orders.

Special part: four core crimes

The Rome Statute punishes especially grave violations of human rights and of international humanitarian law and defines the following core crimes:

  • Genocide (Art. 6 Rome Statute) meaning acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group
  • Crimes against humanity (Art. 7 Rome Statute) meaning acts such as widespread and systematic violations of human rights, such as forced disappearances, rapes, forced displacements or torture
  • War crimes (Art. 8 Rome Statute) meaning violations of international humanitarian law, including the use of biological weapons, torture, rape or the intentional bombardment of civilians in armed conflicts

2010 additions to the Rome Statute

At the revision conference in Kampala (Uganda) in 2010, state representatives finally agreed on adding a fourth crime to the list: the crime of aggression (art. 8 bis Rome Statute). The change entered into force on 26 June 2016, when Palestine became the 30th state to ratify the change of statute (as of 21 May 2019, 38 states have ratified the new version; current count). On 15 December 2017 the states parties agreed to activite the Courts jurisdiction over the crime of agression. Neveretheless, the signatory states have decided on various further prerequisites for the validity of the crime of aggression. For example, the change of statutes applies only to the states that ratify it (consensus principle). The signatory states also have the possibility to exclude jurisdiction through an opt-out system if the investigations have been initiated either by state referral or by the persecutor him or herself.

Additionally, the offense of war crime in Art. 8 Rome Statute has been expanded (by Art. 8 lit. e para. xiii, xiv and x). The use of poison, poisoned weapons, gas and similar substances and devices as well as dum-dum bullets will now also be considered war crimes in internal armed conflicts. These changes have been ratified by 38 states so far (as of 17 June 2019; current count). They entered into force on 26 September 2012.

2017 additions to the Rome Statute

In December 2017, the Assembly of the State Parties adopted three additional amendments to the Rome Statute. As of now, the use of biological weapons, of weapons the primary effect of which is to injure by fragments which in the human body escape detection by X-rays, and of laser weapons that cause blindness can be considered as a war crime. So far, two states have ratified these amendements (as of 27 June 2019; current count).

The International Criminal Court: admissibility of proceedings

The Rome Statute created the International Criminal Court (ICC) in The Hague. The ICC is responsible for prosecuting individuals who have committed the international core crimes. Criminal action before the ICC is permitted if the ICC has jurisdiction, if the mechanism has been triggered and if the principle of complementarity has been adequately respected.

Jurisdiction

The jurisdiction is fixed in Arts. 11 and 12 of the Rome Statute. The ICC has competence over the four core crimes under international law (art. 5 Rome Statute). The ICC is responsible for crimes committed after 1 July 2002. From a formal perspective, the crime must have been committed in a signatory state or by a national of a signatory state, otherwise a non-signatory must submit to the authority of the ICC ad hoc.

Trigger mechanisms

Art. 13 of the Rome Statute provides for three trigger mechanisms: a signatory state can submit a situation to the ICC (art. 13 lit. a and art. 14 Rome Statute), the UN Security Council can forward a situation to the ICC (art. 13 lit. b Rome Statute), or the prosecution can act by virtue of its office (proprio motu, art. 13 lit. c and art. 15 Rome Statute).

Principle of complementarity

The principle of complementarity is standardised in Art. 17 of the Rome Statute. Since the jurisdiction of the ICC is complementary to the national courts, the national courts are primarily responsible for the conduct of investigations and prosecutions of international crimes. The ICC is only responsible if a signatory state is not willing or not able to seriously carry out the investigations and prosecutions.

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