Of the 139 states that signed the Rome Statute, 32 have not yet ratified the treaty. According to the Vienna Convention on the Law of Treaties [PDF], a state that has signed but not ratified a treaty is obliged to refrain from “acts which would defeat the object and purpose” of the treaty. Israel, Sudan and the US have unsigned the Rome Statute, indicating that they no longer intend to become a party to the treaty. Thus, they have no legal obligations arising from their signature of the statute.
The ICC’s jurisdiction includes: individuals who are citizens of a state that has ratified the treaty, individuals who commit their alleged crimes on the territory of a state party and cases referred to the ICC by demand of the UNSC. The principle of complementarity in Article 17 of the Rome Statute prohibits the ICC from initiating an investigation when a domestic judicial system has already addressed the issue. International law already allows individual states to try perpetrators of genocide, war crimes and crimes against humanity under the principle of universal jurisdiction.
A non-party state may not have acceded to the ICC, but it may still be subject to an obligation to cooperate in certain cases. According to the general principle of the law of treaties, as embodied in the Vienna Convention on the Law of Treaties, the obligation of non-party states to cooperate differs from that of state parties. While Article 86 of the Rome Statute requires party states to cooperate fully with an investigation and prosecution, Article 87 provides for cooperation with the ICC by non-party states. It stipulates that the Court ”may invite any State not party to this statute to provide assistance under this Part on the basis of an ad hoc arrangement, an agreement with such State or any other appropriate basis.” Non-party states are not obligated to cooperate without their consent.
When the UNSC refers a situation to the ICC, it involves UN member states, whether they are party states to the ICC or not. These referrals arise when a nation is unable or unwilling to try suspects of crimes against humanity or war crimes.
On March 31, 2005, the UNSC approved a draft resolution granting the ICC jurisdiction over the conflict in Darfur, Sudan. This was the first instance of the UNSC utilizing Article 13(b) of the Rome Statute, the ICC’s investigation mechanism. Sudan remains uncooperative despite its obligations to take any steps it deems appropriate to cooperate with the investigation. Sudan, a non-party to the Rome Statute, refuses to recognize ICC jurisdiction. In response, on May 26, 2010, the ICC reported Sudan to the UNSC for lack of cooperation in the pursuit of three alleged war criminals, including Sudanese Defense Minister Abdel Raheem Muhammad Hussein.
Democratic Republic of Congo
In accordance with Article 14 (referrals to the ICC by the states parties), formal investigations into possible war crimes in the Democratic Republic of Congo (DRC) began on June 23, 2004. On August 26, 2006, the ICC formally charged DRC militia leader Thomas Lubanga Dyilo with recruitment, enlistment and use of child soldiers, marking the beginning of the first ever formal investigation conducted by the ICC. On March 14, 2012, the ICC issued its first verdict, against Dyilo for the war crime of enlistment of child soldiers. The ICC announced in August 2012 that it would begin implementation of its first plan for reparations to the victims affected by Dyilo.
In March 2013, Congolese war crimes suspect General Bosco Ntaganda, who had been wanted since 2006 by the ICC on charges of enlisting and conscripting children under the age of 15 and of using them to participate actively in DRC hostilities, surrendered to a US embassy in Rwanda and requested extradition to the ICC. Ntaganda then formally surrendered to the ICC and denied all charges against him at his first appearance before the court.
The government of Uganda referred the conflict in northern Uganda to the ICC on December 16, 2003. In accordance with Article 14 of the Rome Statute (referrals to the ICC by party states), formal investigations into possible war crimes in northern Uganda began on July 29, 2004. In October 2005, the ICC issued warrants under seal for the arrest of five leaders of the Lord’s Resistance Army (LRA), including Joseph Kony. The ICC called for global cooperation in facilitating the arrests, but none of the suspects have yet stood trial. All five defendants were consolidated into one case, but dropped to only four defendants after the confirmation of Raska Lukwiya’s death. Efforts to apprehend Kony have sparked international activism, such as when then-ICC Chief Prosecutor Luis Moreno-Ocampo announced his support for a publicity campaign by Invisible Children advocating the capture of Kony. Although the arrest warrants remain in place, Uganda could conceivably challenge the admissibility of the case under Article 19 of the Rome Statute by showing that the conditions surrounding the need for a referral to the ICC no longer exist.
The situation in Uganda highlights possible tension between the ICC and sovereign governments. JURIST Guest Columnist Wes Rist argued:
By creating a special war crimes division in the Ugandan High Court, the government is taking the steps that the ICC was created to promote. This is not a failure for Ocampo or the ICC. In fact, this is the result that the ICC should be hoping for. The outstanding indictments against Joseph Kony, Vincent Otti, Okot Obhiambo and Dominic Ongwen have been a persistent bar to the attempts by both sides to reach a permanent peace agreement. In addition, there seem to be substantial reports that the population of Uganda wishes to see these individuals face justice in their own country and not at the ICC. In this case, and certainly in cases to come, there is a very difficult and fine line that the ICC must walk between pursuing justice and preventing peace. But in this case, it seems that both objectives are obtainable if the ICC is willing to cooperate.
Central African Republic
On April 14, 2006, the Central African Republic (CAR) Court, declaring itself incompetent to handle war crimes proceedings, referred DRC’s former president Ange Felix Patasse and Congo’s Vice-President Jean Pierre Bemba to the ICC, on war crimes charges stemming from accusations that security forces executed and raped civilians. On May 24, 2008, Belgian authorities arrested Bemba after the ICC issued the warrant for his arrest.
In accordance with the Rome Statute, the ICC also has the power to report the status of suspects entering party states. On July 12, 2010, the ICC issued an arrest warrant for Sudanese President Omar al-Bashir, charging him with three counts of genocide. On August 27, 2010, the ICC reported al-Bashir’s visit to Kenya and directed that country to take any actions deemed necessary to apprehend him. Officials in Kenya failed to arrest al-Bashir, effectively failing to meet Kenya’s international obligations as a party to the Rome Statute. While the Sudan is not a party state, and therefore not obligated to take action in regard to the investigation, Kenya is legally bound to act as a signatory to the statute. Weeks earlier, al-Bashir was able to visit Chad, another party state to the Rome Statute, without arrest, despite Moreno-Ocampo’s call for international cooperation. Under the Rome Statute, ICC member nations that do not comply with cooperation requests can be referred to the UNSC for non-cooperation. On November 28, 2011, a Kenyan court issued a ruling declaring that al-Bashir must be arrested if he ever returns to Kenya.
The failure of officials to arrest al-Bashir indicates a problem with the legitimacy of the court when nations are not willing to cooperate. JURIST Guest Columnist Eric Leonard argued:
The Kenyan government’s actions are but one example of this broader problem. Yes, the ICC has the capacity to issue arrest warrants for those individuals accused of violating the international norms of humanitarian law, but in order to act upon those warrants the Court needs state cooperation. The anarchical nature of the international system requires such cooperation. Thus, the ICC, in many ways, is only as effective as the member states make it.
On October 3, 2011, the ICC announced that it would begin an investigation into alleged war crimes committed in the Ivory Coast during the post-election violence since November 2010. The Ivory Coast is not a party to the Rome Statute. However, pursuant to Article 12(3), the State has accepted the ICC’s jurisdiction over the crimes as if it were a party state. A state utilizing Article 12(3) jurisdiction cannot refer a case to the ICC, but the prosecutor can open an investigation after a pre-trial chamber gives its consent to do so, as was the case in the Ivory Coast. On February 2, 2012, the pre-trial Chamber permitted Moreno-Ocampo to expand his investigation of war crimes in the Ivory Coast to incidents dating back to 2002. On June 12, 2012, the ICC agreed to allow postponement of the hearing of the charges against former Ivory Coast president Laurent Gbagbo after his defense team requested additional time. Allegations against Gbagbo include murder, persecution, inhumane acts, rape and other forms of sexual violence allegedly committed during the 2010 post-election period. National authorities surrendered him to the ICC on November 30, 2011.
On January 23, 2012, Moreno-Ocampo confirmed charges against four out of the six suspects allegedly involved in post-election disorder following the December 2007 Kenyan elections, during which an estimated 1,100 people were killed. The Kenyan investigation is surrounded by controversy, as the government of Kenya and the National Assembly both attempted to halt the ICC process, arguing that the government is capable of prosecuting the six men domestically, and thus, according to the Rome Statute, should maintain jurisdiction over the case. Under the Rome Statute’s complementarity principle, the ICC only has jurisdiction over cases where the relevant state is unwilling or unable to investigate.
The Kenya ICC trial was scheduled to begin in April 2013 until Kenyan Presidential candidate Uhuru Kenyatta requested that the ICC postpone his trial. ICC Chief Prosecutor Fatou Bensouda granted Kenyatta’s request and delayed the trial of four of the defendants, which was subsequently approved by ICC judges. The ICC also postponed the trial of Kenyan Vice Presidential candidate William Ruto in order to ensure trial preparedness. In March 2013, the ICC dropped charges of crimes against humanity against Kenyan politician Francis Muthaura, citing evidence and witness testimony issues. Subsequently, Kenyatta requested that the ICC also drop charges against him due to lack of evidence.
Also in March 2013, a Kenyan election commission declared Kenyatta the winner of the country’s 2013 presidential election, results that were disputed by rival candidate Prime Minister Raila Odinga. Odinga appealed the election results, which resulted in the Supreme Court of Kenya imposing a gag order on all parties to the case, then ordering a recount. The Court subsequently upheld the results of the election, and Kenyatta was sworn in as Kenya’s fourth president in April 2013.
On April 3, 2012, Moreno-Ocampo’s office issued its decision on the struggles in Palestine, stating that it is unable to proceed with its preliminary investigation of possible war crimes because it does not have the authority to declare Palestine a state for the purposes of the Rome Statute. The decision came over three years after Palestine submitted a declaration under Article 12(3) of the Rome Statute to trigger the jurisdiction of the court as a non-party state to the statute.
JURIST Guest Columnist Valentina Azarov criticized Moreno-Ocampo’s decision:
The Office of the Prosecutor’s (OTP) fuzzy reasoning, which blurred the law and the politics of international relations, begs the question of whether the decision on Palestine was as impartial and rigorous as should be expected. Arguably, the sharp turn in the OTP’s approach could even form the basis for a claim that the quality of the examination breached the OTP’s professional duties to ensure a standard of rigor and impartiality in its examination of cases.
Legitimacy of the Court
The politicization of the ICC continues to threaten its legitimacy. One of the biggest critics of the ICC is the US, which stands virtually alone as the only Western nation not to ratify the Rome Statute. Parties to the statute criticize the US decision to abstain from participating in the court, claiming that the US seeks to immunize its officials and soldiers from becoming defendants in war crimes prosecutions. Indeed, on March 18, 2007, Moreno-Ocampo claimed that then-US President George W. Bush may face a war crimes investigation (pending jurisdictional requirements) stemming from the conduct of coalition forces in Iraq. Though President Bill Clinton signed the Rome Statute in 2000, the Clinton administration did not submit the treaty to the Senate for ratification. In 2002, President George W. Bush unsigned the treaty. Although President Barack Obama’s administration has expressed greater support for the ICC than the Bush Administration, it is unlikely that the US will become a party to the Rome Statute in the near future.