Hello. Welcome back. Today we focus on the ICC as a central actor in international criminal law. In this video you will learn how the ICC pursues the legal and philosophical legacy of its predecessors. We will discuss the ICC establishment, and its institutional design. The institutional features that we zoom in on are the ICC's jurisdiction, the trigger mechanisms, and the principle of complementarity. Lastly, we shortly discussed the ICC's greatest challenges. The ICC was established following intense negotiations. On 17 July, 1998, 120 states adopted the statute for an International Criminal Court in Rome. Honoring the location of adoption, the statute is also sometimes called the Rome Statute. After 60 states ratified the Rome statute, it entered into force in 2002. The court currently has jurisdiction to prosecute four crimes: genocide, crimes against humanity, and war crimes, and aggression provided that the definition was agreed on. In the review conference of 2010 in Kampala, Uganda, the crime of regression was effectively added. Aggression, as an international crime, is in short, a severe violation of the use of force against another state. As you may recall, the crime of peace, aggressive war, was already prosecuted in Nuremberg and Tokyo, and it has now returned. As soon as the Kampala agreement is ratified by 30 states, individuals may also be prosecuted for a crime of aggression at the ICC. Unlike the ICTY and the ICR, the ICC has universal aspirations. It is not only permanent, but is also meant to be a court for the entire international community. Given its global potential, states were wary to keep the ICC under their control during negotiations in Rome. Consequently, the institutional design of the ICC being treaty based has more features of a consensual system. Unlike the Chapter 7 based haddock tribunal for Yugoslavia and Rwanda. The ICC is not ipso facto binding on all UN member states, but in principle only on those states which have become a party to the statute. Three institutional features mark the consensual nature of the ICC. These relates to the ICC's jurisdiction, the so called trigger mechanisms, and the complementary nature of the ICC. Let's discuss the court's jurisdiction first. Despite aspirations to anti-impunity, states did not face the ICC with universal jurisdiction. So the ICC cannot prosecute any international crime committed wherever by whoever. But instead the reach of its jurisdiction is limited. The principles upon which the court functions are the territoriality principle and the active nationality principle. And you can find this in Article 12 of the ICC Statutes. According to these applicable principles, the Court can only prosecute crimes committed on territory of a state that is a party to the Rome Statute, or crimes committed by a national of a state party. And only the UN Security Council can extend the jurisdiction of the ICC beyond Article 12. What is important to realize is that the ICC can thus not prosecute crimes committed on the territory of states that are not party to the ICC Statute, and which are committed by nationals of that state. And this means, for instance, that many of the crimes committed by IS and assault soldiers in Syria and Iraq, cannot be prosecuted by the ICC since both these states are not parties to the ICC statutes. The ICC prosecutor can only prosecute foreign fighters or nationals of states parties. For instance, UK or the Netherlands. However, since the IS leadership is mainly composed of Iraqi nationals, the ICC prosecution decided in April 2015 not to open preliminary examinations. This decision may be revisited when the leadership composition changes, when Syria or Iraq accepts ICC jurisdiction haddock version to a 12(3) declaration, or when the Security Council triggers jurisdiction through a referral. And this last possibility brings us to the theme of trigger mechanisms. In those situations in which the ICC does have jurisdiction, the next question is how these situations may be brought to the Court, and this question concerns the so called trigger mechanisms. The methods to reach the ICC's jurisdiction can be activated. There are three search mechanisms which you can find in Article 13 of the statute. They are referral by a state, referral by the Security Council, and proprio motu action by the ICC Prosecutor. The most traditional trigger mechanism is state referral, which we can find in Article 13A. The first situations came before the Court precisely on the basis of this provision. The State referral mechanism. Yet, in these fair situations, the trigger mechanism of state referral was applied in a very creative manner, as the ICC prosecutor in a way encouraged states to refer their own situations. So what we had were so called self-referrals and this happened in the case of DRC Congo and Uganda and later on also with the Central African Republic and Mali. Through the second trigger mechanism, Article 13B of the ICC statute, situations can be referred to the ICC by the Security Council. This mechanism comes into play when the Security Council determines that there is a threat to the peace which can best be addressed through ICC prosecutions. Importantly, the Security Council can also refer situations of crimes committed in states that are not a party to the ICC statute. The Security Council can thus extend the ICC's jurisdiction and give it global reach. In Rome, during the negotiations, few people thought the Security Council would ever refer a situation given the opposition of some permanent members such as China, Russia, and the US to the ICC. Still the Security Council has referred two situations to the ICC, namely Darfur in Resolution 1593 and 2005 and Libya in Resolution 1973 and 2011. Lastly, the Prosecutor can act proprio motu, when he or she decides to initiate an investigation on his or her own motion without a state or the Security Council prompting to do so. Negotiated, intensely discussed in Rome, whether the prosecutor should be allowed to act on his or her own motion, and many states were hesitant to give the prosecutor these kinds of broad powers. Therefore, by way of compromise, the statute incorporates a certain restraining element and it stipulates that the office of the Prosecutor can only open investigations into situations on its own initiative is if it has received authorization by the Pre-Trial Chamber, according to Article 15, Paragraph 3 of the statute. So, there's an additional requirement of judicial authorization, which we do not find with the other trigger mechanisms. The office of the prosecutor has indeed initiated cases proprio motu in a variety of cases. For instance, in situations which concern crimes committed in the context of post-election violence, namely Kenya and Cote d'Ivoire. A last fundamental feature of the ICC, which reinforces its consensual basis, i's the principle of complementarity. The ICC is complementary to domestic jurisdictions. Complementarity is better way to organize concurrent jurisdiction between the ICC and domestic criminal courts. In this respect states have the primary responsibility to investigate and prosecute international crimes. The idea of complementarity is lay down in Article 17 of the ICC statute and as the ICC explained the Catonga appeals decision of 25 September of 2000 In involved a two step analysis. The first step is to determine whether there are or have been investigations or prosecutions. If not, the court has automatic jurisdiction. The second step is made if there are domestic investigations and/or prosecutions. And in those situations, the Court has to determine whether domestic authorities are unable or unwilling. This is a more complex assessment. For the assessment of complementarity, the court has developed the same person, same conduct test. First articulated in the Lubanga case .this test determines that the ICC will not interfere if a person is being or has been investigated or prosecuted at the domesticate level for the same conduct. So if a person is being prosecuted for corruption at the domestic level, this will not bar ICC action. But if a person is prosecuted for the same conduct at the domestic level, then the ICC case is inadmissible and cannot proceed. Yet the crucial question is, when can investigated conduct be said to be the same or substantially the same at the domestic and ICC level? A decision of 21 May, 2014, in the case against Sef Gadaffi, the ICC appeals chamber has indicated that it cannot set down a hard and fast rule to regulate this. For other, the crucial question is how much overlap exists between ICC and domestic investigations. And in case of substantial overlap, the ICC case will not be admissible. So we find that the ICC has fleshed out key concepts such as complementarity in its jurist prudence. Nonetheless, in it's first decade of operation, the ICC has also encountered numerous challenges, we name a few. The first relates to the lack of enforcement powers. The ICC does not have it's own police force. It is dependent on state cooperation to execute its arrest warrants, but also to be granted territorial access to undertake its investigations of the crime scenes and to interview witnesses. In the next video, we will ask the ICC prosecutor how does lack of enforcement powers impact her abilities to investigate, and what strategy she has designed to overcome this. The second challenge relates to the intervention in ongoing conflicts. Some of the situations under ICC scrutiny concern ongoing conflicts such as Libya. It is clear that this complicates the ICC prosecutor's work enormously. Not only in practical terms but in such situations the prosecutor must also take into account what the consequences are of certain policies and actions on the conflict. Third,high expectations. We have already discussed in the previous videos about the great variety of goals international criminal tribunals are supposed to take, such as ending impunity, redress of victims, and fostering national reconciliation. You must, however, take care not to over-expect. The ICC cannot solve and address everything on its own. The biggest challenge for the ICC is probably the critique of selectivity. Of applying double standards and of being Africa focused or perhaps even racist. These are very serious and sensitive claims. As a preliminary observation, we have to remember that in most African situations the ICC is intervening at the request of the state itself Nonetheless, let us have a look at this critique in more detail. Therefore I invite you to have a look at the ICC website and to make two lists. One of ongoing and closed preliminary examinations, and one of ongoing investigations, and then we will see that a critique of selectivity and Africa focus only applies to those situations where preliminary examinations have resulted in the opening of investigations. This insight does of course not fully address the critique selectivity, but it does contextionize. And reducing the situations outside Africa have come under ICC scrutiny. It assessing selectivity critics. We also need to take into account the fact that the ICC has set in financial restrains. It's budget is not limitless. So it cannot take in all cases. It must select. But how? We must face the need for selectivity and discuss it. Therefore, in the next video we will invite a prosecutor to give her views on this matter. I hope you join us there.
