Interests of justice
The Prosecutor will initiate aninvestigation unless there are "substantial reasons tobelieve that an investigation would not serve the interests ofjustice" when "[t]aking into account the gravity ofthe crime and the interests of victims". Furthermore, evenif an investigation has been initiated and there are substantialfacts to warrant a prosecution and no other admissibility issues, theProsecutor must determine whether a prosecution would serve theinterests of justice "taking into account all thecircumstances, including the gravity of the crime, the interests ofvictims and the age or infirmity of the alleged perpetrator, and hisor her role in the alleged crime".
Individual criminal responsibility
The Court has jurisdiction over naturalpersons. A person who commits a crime within the jurisdiction of theCourt is individually responsible and liable for punishment inaccordance with the Rome Statute. In accordance with the RomeStatute, a person shall be criminally responsible and liable forpunishment for a crime within the jurisdiction of the Court if thatperson: Commits such a crime, whether as an individual, jointly withanother or through another person, regardless of whether that otherperson is criminally responsible; Orders, solicits or induces thecommission of such a crime which in fact occurs or is attempted; Forthe purpose of facilitating the commission of such a crime, aids,abets or otherwise assists in its commission or its attemptedcommission, including providing the means for its commission; In anyother way contributes to the commission or attempted commission ofsuch a crime by a group of persons acting with a common purpose. Inrespect of the crime of genocide, directly and publicly incitesothers to commit genocide; Attempts to commit such a crime by takingaction that commences its execution by means of a substantial step,but the crime does not occur because of circumstances independent ofthe person's intentions
Procedure
Trial
Trials are conducted under a hybridcommon law and civil law judicial system, but it has been argued theprocedural orientation and character of the court is still evolving. A majority of the three judges present, as triers of fact in a benchtrial, may reach a decision, which must include a full and reasonedstatement. Trials are supposed to be public, but proceedings areoften closed, and such exceptions to a public trial have not beenenumerated in detail. In camera proceedings are allowed forprotection of witnesses or defendants as well as for confidential orsensitive evidence. Hearsay and other indirect evidence is notgenerally prohibited, but it has been argued the court is guided byhearsay exceptions which are prominent in common law systems. Thereis no subpoena or other means to compel witnesses to come before thecourt, although the court has some power to compel testimony of thosewho chose to come before it, such as fines.
Rights of the accused
The Rome Statute provides that allpersons are presumed innocent until proven guilty beyond reasonabledoubt, and establishes certain rights of the accused and personsduring investigations. These include the right to be fully informedof the charges against him or her; the right to have a lawyerappointed, free of charge; the right to a speedy trial; and the rightto examine the witnesses against him or her.
To ensure "equality of arms"between defence and prosecution teams, the ICC has established anindependent Office of Public Counsel for the Defence (OPCD) toprovide logistical support, advice and information to defendants andtheir counsel. The OPCD also helps to safeguard the rights of theaccused during the initial stages of an investigation. However,Thomas Lubanga's defense team say they were given a smaller budgetthan the Prosecutor and that evidence and witness statements wereslow to arrive.
Victim participation
One of the great innovations of theStatute of the International Criminal Court and its Rules ofProcedure and Evidence is the series of rights granted to victims. For the first time in the history of international criminal justice,victims have the possibility under the Statute to present their viewsand observations before the Court.
Participation before the Court mayoccur at various stages of proceedings and may take different forms,although it will be up to the judges to give directions as to thetiming and manner of participation.
Participation in the Court'sproceedings will in most cases take place through a legalrepresentative and will be conducted "in a manner which isnot prejudicial or inconsistent with the rights of the accused and afair and impartial trial".
The victim-based provisions within theRome Statute provide victims with the opportunity to have theirvoices heard and to obtain, where appropriate, some form ofreparation for their suffering. It is the aim of this attemptedbalance between retributive and restorative justice that, it ishoped, will enable the ICC to not only bring criminals to justice butalso help the victims themselves obtain some form of justice. Justicefor victims before the ICC comprises both procedural and substantivejustice, by allowing them to participate and present their views andinterests, so that they can help to shape truth, justice andreparations outcomes of the Court.
Article 43(6) establishes a Victims andWitnesses Unit to provide "protective measures and securityarrangements, counseling and other appropriate assistance forwitnesses, victims who appear before the Court, and others who are atrisk on account of testimony given by such witnesses." Article 68 sets out procedures for the "Protection of thevictims and witnesses and their participation in the proceedings." The Court has also established an Office of Public Counsel forVictims, to provide support and assistance to victims and their legalrepresentatives.
The ICC does not have its own witnessprotection program, but rather must rely on national programs to keepwitnesses safe.
Reparations
Victims before the InternationalCriminal Court can also claim reparations under Article 75 of theRome Statute. Reparations can only be claimed when a defendant isconvicted and at the discretion of the Court's judges. So far theCourt has ordered reparations against Thomas Lubanga. Reparationscan include compensation, restitution and rehabilitation, but otherforms of reparations may be appropriate for individual, collective orcommunity victims. Article 79 of the Rome Statute establishes a TrustFund to provide assistance before a reparation order to victims in asituation or to support reparations to victims and their families ifthe convicted person has no money.
Co-operation by states not party toRome Statute
One of the principles of internationallaw is that a treaty does not create either obligations or rights forthird states without their consent, and this is also enshrined in the1969 Vienna Convention on the Law of Treaties. The co-operation ofthe non-party states with the ICC is envisioned by the Rome Statuteof the International Criminal Court to be of voluntary nature. However, even states that have not acceded to the Rome Statute mightstill be subjects to an obligation to co-operate with ICC in certaincases. When a case is referred to the ICC by the UN Security Councilall UN member states are obliged to co-operate, since its decisionsare binding for all of them. Also, there is an obligation to respectand ensure respect for international humanitarian law, which stemsfrom the Geneva Conventions and Additional Protocol I, which reflectsthe absolute nature of international humanitarian law.
In relation to co-operation ininvestigation and evidence gathering, it is implied from the RomeStatute that the consent of a non-party state is a prerequisite forICC Prosecutor to conduct an investigation within its territory, andit seems that it is even more necessary for him to observe anyreasonable conditions raised by that state, since such restrictionsexist for states party to the Statute. Taking into account theexperience of the International Criminal Tribunal for the formerYugoslavia (which worked with the principle of the primacy, insteadof complementarity) in relation to co-operation, some scholars haveexpressed their pessimism as to the possibility of ICC to obtainco-operation of non-party states. As for the actions that ICC cantake towards non-party states that do not co-operate, the RomeStatute stipulates that the Court may inform the Assembly of StatesParties or Security Council, when the matter was referred by it, whennon-party state refuses to co-operate after it has entered into an adhoc arrangement or an agreement with the Court.
Amnesties and nationalreconciliation processes
It is unclear to what extent the ICC iscompatible with reconciliation processes that grant amnesty to humanrights abusers as part of agreements to end conflict. Article 16 ofthe Rome Statute allows the Security Council to prevent the Courtfrom investigating or prosecuting a case, and Article 53 allows theProsecutor the discretion not to initiate an investigation if he orshe believes that "an investigation would not serve theinterests of justice". Former ICC president Philippe Kirschhas said that "some limited amnesties may be compatible"with a country's obligations genuinely to investigate orprosecute under the Statute.
It is sometimes argued that amnestiesare necessary to allow the peaceful transfer of power from abusiveregimes. By denying states the right to offer amnesty to human rightsabusers, the International Criminal Court may make it more difficultto negotiate an end to conflict and a transition to democracy. Forexample, the outstanding arrest warrants for four leaders of theLord's Resistance Army are regarded by some as an obstacle to endingthe insurgency in Uganda. Czech politician Marek Benda argues that"the ICC as a deterrent will in our view only mean the worstdictators will try to retain power at all costs". However,the United Nations and the International Committee of the Red Crossmaintain that granting amnesty to those accused of war crimes andother serious crimes is a violation of international law.
Facilities
Headquarters
International Criminal Court
The official seat of the Court is inThe Hague, Netherlands, but its proceedings may take place anywhere.
The Court moved into its firstpermanent premises in The Hague, located at Oude Waalsdorperweg 10,on 14 December 2015. Part of The Hague's International Zone, whichalso contains the Peace Palace, Europol, Eurojust, ICTY, OPCW and TheHague World Forum, the court facilities are situated on the site ofthe Alexanderkazerne, a former military barracks, adjacent to thedune landscape on the northern edge of the city. The ICC's detentioncentre is a short distance away.
Development
The land and financing for the newconstruction were provided by the Netherlands. In addition, the hoststate organized and financed the architectural design competitionwhich started at the end of 2008.
Three architects were chosen by aninternational jury from a total of 171 applicants to enter intofurther negotiations. The Danish firm schmidt hammer lassen wereultimately selected to design the new premises since its design metall the ICC criteria, such as design quality, sustainability,functionality and costs.
Demolition of the barracks started inNovember 2011 and was completed in August 2012. In October 2012 thetendering procedure for the General Contractor was completed and thecombination Visser & Smit Bouw and Boele & van Eesteren("Courtys") was selected.
Architecture
The building has a compact footprintand consists of six connected building volumes with a garden motif.The tallest volume with a green facade, placed in the middle of thedesign, is the Court Tower that accommodates three courtrooms. Therest of the building's volumes accommodate the offices of thedifferent organs of the ICC.
Exterior
Until late 2015, the ICC was housed ininterim premises in The Hague provided by the Netherlands. Formerlybelonging to KPN, the provisional headquarters were located atMaanweg 174 in the east-central portion of the city.
Detention centre
The ICC's detention centre accommodatesboth those convicted by the court and serving sentences as well asthose suspects detained pending the outcome of their trial. Itcomprises twelve cells on the premises of the Scheveningen branch ofthe Haaglanden Penal Institution, The Hague, close to the ICC'sheadquarters in the Alexanderkazerne. Suspects held by the formerInternational Criminal Tribunal for the former Yugoslavia were heldin the same prison and shared some facilities, like the fitness room,but had no contact with suspects held by the ICC.
Other offices
The ICC maintains a liaison office inNew York and field offices in places where it conducts itsactivities. As of 18 October 2007, the Court had field offices inKampala, Kinshasa, Bunia, Abéché and Bangui.
Finance
The ICC is financed by contributionsfrom the states parties. The amount payable by each state party isdetermined using the same method as the United Nations: each state'scontribution is based on the country's capacity to pay, whichreflects factors such as a national income and population. Themaximum amount a single country can pay in any year is limited to 22%of the Court's budget; Japan paid this amount in 2008.
The Court spent €80.5 million in2007. The Assembly of States Parties approved a budget of €90.4million for 2008, €101.2 million for 2009, and €141.6 million for2017. As of April 2017, the ICC's staff consisted of 800 personsfrom approximately 100 states.
Trial history to date
The ICC issued an arrest warrant forOmar al-Bashir of Sudan over alleged war crimes in Darfur.
To date, the Prosecutor has openedinvestigations in fourteen situations: Afghanistan; Burundi; two inthe Central African Republic; Côte d'Ivoire; Darfur, Sudan; theDemocratic Republic of the Congo; Georgia; Kenya; Libya; Mali;Uganda; Bangladesh/Myanmar, Palestine and Venezuela. Additionally,the Office of the Prosecutor is conducting preliminary examinationsin six situations: Colombia; Guinea; Nigeria; the Philippines;Ukraine and Bolivia.
The Court's Pre-Trial Chambers havepublicly indicted 45 people. Proceedings against 19 are ongoing: 12are at large as fugitives, three are in the pre-trial phase, threeare on trial, and one is appealing his sentence. Proceedings against26 have been completed: two are serving their sentences, six havefinished their sentences, four have been acquitted, seven have hadthe charges against them dismissed, three have had the chargesagainst them withdrawn, and four have died before trial.
Thomas Lubanga, Germain Katanga andMathieu Ngudjolo Chui were tried by the ICC. Lubanga and Katanga wereconvicted and sentenced to 14 and 12 years imprisonment,respectively, whereas Chui was acquitted.
The judgment of Jean-Pierre Bemba wasrendered in March 2016. Bemba was convicted on two counts of crimesagainst humanity and three counts of war crimes. This marked thefirst time the ICC convicted someone of sexual violence as they addedrape to his conviction. Bemba's convictions were overturned by theCourt's Appeal Chamber in June 2018.
Trials in the Ntaganda case (DR Congo),the Bemba et al. OAJ case and the Laurent Gbagbo-Blé Goudé trial inthe Côte d'Ivoire situation are ongoing. The Banda trial in thesituation of Darfur, Sudan, was scheduled to begin in 2014 but thestart date was vacated.
Charges against Ugandan Dominic Ongwenand Malian Ahmed al-Faqi have been confirmed; as of March 2020 bothwere awaiting their trials.
On 6 July 2020, two Uyghur activistgroups filed a complaint with the ICC calling for it to investigatePRC officials for crimes against Uyghurs including allegations ofgenocide. The ICC does not have the necessary jurisdiction for thisin the absence of a referral from the UN Security Council, as the PRCis not a party to the Rome Statute.
Investigations and preliminaryexaminations
ICC investigations
Green: Official investigations(Burundi, Central African Republic (2), Côte d'Ivoire, Darfur(Sudan), Democratic Republic of Congo, Georgia, Kenya, Libya, Mali,Uganda, Bangladesh and Myanmar)
Orange: Authorization to openinvestigation requested (none at present)
Light red: Ongoing preliminaryexaminations (Afghanistan, Colombia, Comoros, Guinea, Iraq, Nigeria,Palestine, Philippines, Ukraine and Venezuela)
Dark red: Closed preliminaryexaminations (Honduras and South Korea)
Currently, the Office of the Prosecutorhas opened investigations in the Central African Republic, Côted'Ivoire, Darfur, Sudan, the Democratic Republic of the Congo, Kenya;Libya, Uganda, Bangladesh/Myanmar, Palestine and Venezuela. Additionally, the Office of the Prosecutor conducted preliminaryexaminations in twelve situations in Afghanistan, Bolivia, Colombia,Guinea, Iraq / the United Kingdom, Nigeria, Georgia, Honduras, SouthKorea and Venezuela. Preliminary investigations were closed in Gabon,Honduras, registered vessels of Comoros, Greece, and Cambodia, SouthKorea, and Colombia on events since 1 July 2002.
Relationships
United Nations
Unlike the International Court ofJustice, the ICC is legally independent from the United Nations.However, the Rome Statute grants certain powers to the United NationsSecurity Council, which limits its functional independence. Article13 allows the Security Council to refer to the Court situations thatwould not otherwise fall under the Court's jurisdiction (as it did inrelation to the situations in Darfur and Libya, which the Court couldnot otherwise have prosecuted as neither Sudan nor Libya are stateparties). Article 16 allows the Security Council to require the Courtto defer from investigating a case for a period of 12 months. Such adeferral may be renewed indefinitely by the Security Council. Thissort of an arrangement gives the ICC some of the advantages inheringin the organs of the United Nations such as using the enforcementpowers of the Security Council, but it also creates a risk of beingtainted with the political controversies of the Security Council.
The Court cooperates with the UN inmany different areas, including the exchange of information andlogistical support. The Court reports to the UN each year on itsactivities, and some meetings of the Assembly of States Parties areheld at UN facilities. The relationship between the Court and the UNis governed by a "Relationship Agreement between theInternational Criminal Court and the United Nations".
Nongovernmental organizations
During the 1970s and 1980s,international human rights and humanitarian NongovernmentalOrganizations (or NGOs) began to proliferate at exponential rates.Concurrently, the quest to find a way to punish international crimesshifted from being the exclusive responsibility of legal experts tobeing shared with international human rights activism.
NGOs helped birth the ICC throughadvocacy and championing for the prosecution of perpetrators ofcrimes against humanity. NGOs closely monitor the organization'sdeclarations and actions, ensuring that the work that is beingexecuted on behalf of the ICC is fulfilling its objectives andresponsibilities to civil society. According to Benjamin Schiff,"From the Statute Conference onward, the relationship betweenthe ICC and the NGOs has probably been closer, more consistent, andmore vital to the Court than have analogous relations between NGOsand any other international organization."
There are a number of NGOs working on avariety of issues related to the ICC. The NGO Coalition for theInternational Criminal Court has served as a sort of umbrella forNGOs to coordinate with each other on similar objectives related tothe ICC. The CICC has 2,500 member organizations in 150 differentcountries. The original steering committee included representativesfrom the World Federalist Movement, the International Commission ofJurists, Amnesty International, the Lawyers Committee for HumanRights, Human Rights Watch, Parliamentarians for Global Action, andNo Peace Without Justice. Today, many of the NGOs with which the ICCcooperates are members of the CICC. These organizations come from arange of backgrounds, spanning from major international NGOs such asHuman Rights Watch and Amnesty International, to smaller, more localorganizations focused on peace and justice missions. Many workclosely with states, such as the International Criminal Law Network,founded and predominantly funded by the Hague municipality and theDutch Ministries of Defense and Foreign Affairs. The CICC also claimsorganizations that are themselves federations, such as theInternational Federation of Human Rights Leagues (FIDH).
CICC members subscribe to threeprinciples that permit them to work under the umbrella of the CICC,so long as their objectives match them:
Promoting worldwide ratificationand implementation of the Rome Statute of the ICC
Maintaining the integrity of theRome Statute of the ICC, and
Ensuring the ICC will be asfair, effective and independent as possible
The NGOs that work under the CICC donot normally pursue agendas exclusive to the work of the Court,rather they may work for broader causes, such as general human rightsissues, victims' rights, gender rights, rule of law, conflictmediation, and peace. The CICC coordinates their efforts to improvethe efficiency of NGOs' contributions to the Court and to pool theirinfluence on major common issues. From the ICC side, it has beenuseful to have the CICC channel NGO contacts with the Court so thatits officials do not have to interact individually with thousands ofseparate organizations.
NGOs have been crucial to the evolutionof the ICC, as they assisted in the creation of the normative climatethat urged states to seriously consider the Court's formation. Theirlegal experts helped shape the Statute, while their lobbying effortsbuilt support for it. They advocate Statute ratification globally andwork at expert and political levels within member states for passageof necessary domestic legislation. NGOs are greatly represented atmeetings for the Assembly of States Parties, and they use the ASPmeetings to press for decisions promoting their priorities. Many ofthese NGOs have reasonable access to important officials at the ICCbecause of their involvement during the Statute process. They areengaged in monitoring, commenting upon, and assisting in the ICC'sactivities.
The ICC often depends on NGOs tointeract with local populations. The Registry Public InformationOffice personnel and Victims Participation and Reparations Sectionofficials hold seminars for local leaders, professionals and themedia to spread the word about the Court. These are the kinds ofevents that are often hosted or organized by local NGOs. Becausethere can be challenges with determining which of these NGOs arelegitimate, CICC regional representatives often have the ability tohelp screen and identify trustworthy organizations.
However, NGOs are also "sources ofcriticism, exhortation and pressure upon" the ICC. The ICCheavily depends on NGOs for its operations. Although NGOs and statescannot directly impact the judicial nucleus of the organization, theycan impart information on crimes, can help locate victims andwitnesses, and can promote and organize victim participation. NGOsoutwardly comment on the Court's operations, "push forexpansion of its activities especially in the new justice areas ofoutreach in conflict areas, in victims' participation andreparations, and in upholding due-process standards and defense'equality of arms' and so implicitly set an agenda for the futureevolution of the ICC." The relatively uninterruptedprogression of NGO involvement with the ICC may mean that NGOs havebecome repositories of more institutional historical knowledge aboutthe ICC than its national representatives, and have greater expertisethan some of the organization's employees themselves. While NGOs lookto mold the ICC to satisfy the interests and priorities that theyhave worked for since the early 1990s, they unavoidably press againstthe limits imposed upon the ICC by the states that are members of theorganization. NGOs can pursue their own mandates, irrespective ofwhether they are compatible with those of other NGOs, while the ICCmust respond to the complexities of its own mandate as well as thoseof the states and NGOs.
Another issue has been that NGOspossess "exaggerated senses of their ownership over theorganization and, having been vital to and successful in promotingthe Court, were not managing to redefine their roles to permit theCourt its necessary independence." Additionally, becausethere does exist such a gap between the large human rightsorganizations and the smaller peace-oriented organizations, it isdifficult for ICC officials to manage and gratify all of their NGOs."ICC officials recognize that the NGOs pursue their ownagendas, and that they will seek to pressure the ICC in the directionof their own priorities rather than necessarily understanding orbeing fully sympathetic to the myriad constraints and pressures underwhich the Court operates." Both the ICC and the NGOcommunity avoid criticizing each other publicly or vehemently,although NGOs have released advisory and cautionary messagesregarding the ICC. They avoid taking stances that could potentiallygive the Court's adversaries, particularly the US, more motive toberate the organization.
Criticisms
African accusations of Westernimperialism
The ICC has been accused of bias and asbeing a tool of Western imperialism, only punishing leaders fromsmall, weak states while ignoring crimes committed by richer and morepowerful states. This sentiment has been expressed particularly byAfrican leaders due to an alleged disproportionate focus of the Courton Africa, while it claims to have a global mandate; until January2016, all nine situations which the ICC had been investigating werein African countries.
The prosecution of Kenyan DeputyPresident William Ruto and President Uhuru Kenyatta (both chargedbefore coming into office) led to the Kenyan parliament passing amotion calling for Kenya's withdrawal from the ICC, and the countrycalled on the other 33 African states party to the ICC to withdrawtheir support, an issue which was discussed at a special AfricanUnion (AU) summit in October 2013.
Though the ICC has denied the charge ofdisproportionately targeting African leaders, and claims to stand upfor victims wherever they may be, Kenya was not alone in criticizingthe ICC. Sudanese President Omar al-Bashir visited Kenya, SouthAfrica, China, Nigeria, Saudi Arabia, United Arab Emirates, Egypt,Ethiopia, Qatar and several other countries despite an outstandingICC warrant for his arrest but was not arrested; he said that thecharges against him are "exaggerated" and that theICC was a part of a "Western plot" against him.Ivory Coast's government opted not to transfer former first ladySimone Gbagbo to the court but to instead try her at home. Rwanda'sambassador to the African Union, Joseph Nsengimana, argued that "Itis not only the case of Kenya. We have seen international justicebecome more and more a political matter." Ugandan PresidentYoweri Museveni accused the ICC of "mishandling complexAfrican issues". Ethiopian Prime Minister HailemariamDesalegn, at the time AU chairman, told the UN General Assembly atthe General debate of the sixty-eighth session of the United NationsGeneral Assembly: "The manner in which the ICC has beenoperating has left a very bad impression in Africa. It is totallyunacceptable."
African Union (AU) withdrawalproposal
South African President Jacob Zuma saidthe perceptions of the ICC as "unreasonable" led tothe calling of the special AU summit on 13 October 2015. Botswana isa notable supporter of the ICC in Africa. At the summit, the AU didnot endorse the proposal for a collective withdrawal from the ICC dueto lack of support for the idea. However, the summit did concludethat serving heads of state should not be put on trial and that theKenyan cases should be deferred. Ethiopian Foreign Minister TedrosAdhanom said: "We have rejected the double standard that theICC is applying in dispensing international justice."Despite these calls, the ICC went ahead with requiring William Rutoto attend his trial. The UNSC was then asked to consider deferringthe trials of Kenyatta and Ruto for a year, but this was rejected. In November, the ICC's Assembly of State Parties responded to Kenya'scalls for an exemption for sitting heads of state by agreeing toconsider amendments to the Rome Statute to address the concerns.
On 7 October 2016, Burundi announcedthat it would leave the ICC, after the court began investigatingpolitical violence in that nation. In the subsequent two weeks, SouthAfrica and Gambia also announced their intention to leave the court,with Kenya and Namibia reportedly also considering departure. Allthree nations cited the fact that all 39 people indicted by the courtover its history have been African and that the court has made noeffort to investigate war crimes tied to the 2003 invasion of Iraq. However, following Gambia's presidential election later that year,which ended the long rule of Yahya Jammeh, Gambia rescinded itswithdrawal notification. The High Court of South Africa ruled on 2February 2017 that the South African government's notice to withdrawwas unconstitutional and invalid. On 7 March 2017 the South Africangovernment formally revoked its intention to withdraw; however, theruling ANC revealed on 5 July 2017 that its intention to withdrawstands.
Supporters of criminalizing ecocideargue that it would shift the ICC's priorities away from Africa,since most environmental degradation is caused by States andcorporations in the Global North.
Criticism by the United Statesgovernment
The United States Department of Stateargues that there are "insufficient checks and balances onthe authority of the ICC prosecutor and judges" and"insufficient protection against politicized prosecutions orother abuses". The current law in the United States on theICC is the American Service-Members' Protection Act (ASPA), 116 Stat.820. The ASPA authorizes the President of the United States to use"all means necessary and appropriate to bring about therelease of any U.S. or allied personnel being detained or imprisonedby, on behalf of, or at the request of the International CriminalCourt." This authorization has led the act to be nicknamedthe "Hague Invasion Act", because the freeing ofU.S. citizens by force might be possible only through militaryaction.
On 10 September 2018, John R. Bolton,in his first major address as U.S. National Security Advisor,reiterated that the ICC lacks checks and balances, exercises"jurisdiction over crimes that have disputed and ambiguousdefinitions," and has failed to "deter and punishatrocity crimes". The ICC, said Bolton, is "superfluous"given that "domestic judicial systems already hold Americancitizens to the highest legal and ethical standards." Headded that the U.S. would do everything "to protect ourcitizens" should the ICC attempt to prosecute U.S.servicemen over alleged detainee abuse in Afghanistan. In that event,ICC judges and prosecutors would be barred from entering the U.S.,their funds in the U.S. would be sanctioned and the U.S. "willprosecute them in the US criminal system. We will do the same for anycompany or state that assists an ICC investigation of Americans",Bolton said. He also criticized Palestinian efforts to bring Israelbefore the ICC over allegations of human rights abuses in the WestBank and Gaza.
ICC responded that it will continue toinvestigate war crimes undeterred.
On 11 June 2020, Mike Pompeo and U.S.President Donald Trump announced sanctions on officials andemployees, as well as their families, involved in investigatingcrimes against humanity committed by US armed forces in Afghanistan.This move was widely criticized by human rights groups. The UnitedStates ordered sanctions against the ICC prosecutor Fatou Bensouda,and the ICC's head of Jurisdiction, Complementary, and CooperationDivision, Phakiso Mochochok for an investigation into alleged warcrimes by U.S. forces and the Central Intelligence Agency (CIA) inAfghanistan since 2003.
OPCD
Concerning the independent Office ofPublic Counsel for the Defence (OPCD), Thomas Lubanga's defence teamsay they were given a smaller budget than the Prosecutor and thatevidence and witness statements were slow to arrive.
Limitations
Limitations exist for the ICC. HumanRights Watch (HRW) reported that the ICC's prosecutor team takes noaccount of the roles played by the government in the conflict ofUganda, Rwanda or Congo. This led to a flawed investigation, becausethe ICC did not reach the conclusion of its verdict after consideringthe governments' position and actions in the conflict.
Unintentional consequences
Research indicates that prosecutions ofleaders who are culpable of international crimes in the ICC makesthem less likely to peacefully step down, which can prolong conflictsand incentivize them to make continued use of mass violence. It isalso argued that justice is a means to peace: "As a result,the ICC has been used as a means of intervention in ongoing conflictswith the expectation that the indictments, arrests, and trials ofelite perpetrators have deterrence and preventive effects foratrocity crimes. Despite these legitimate intentions and greatexpectations, there is little evidence of the efficacy of justice asa means to peace".
State cooperation
That the ICC cannot mount successfulcases without state cooperation is problematic for several reasons.It means that the ICC acts inconsistently in its selection of cases,is prevented from taking on hard cases and loses legitimacy. It alsogives the ICC less deterrent value, as potential perpetrators of warcrimes know that they can avoid ICC judgment by taking overgovernment and refusing to cooperate.
Questioning the true application ofthe principle of complementarity
The fundamental principle ofcomplementarity of the ICC Rome Statute is often taken for granted inthe legal analysis of international criminal law and itsjurisprudence. Initially the thorny issue of the actual applicationof the complementarity principle arose in 2008, when William Schabaspublished his influential paper. However, despite Schabas'theoretical impact, no substantive research was made by otherscholars on this issue for quite some time. In June 2017, VictorTsilonis advanced the same criticism which is reinforced by events,practices of the Office of the Prosecutor and ICC cases in the Essaysin Honour of Nestor Courakis. His paper essentially argues that theΑl‐Senussi case arguably is the first instance of thecomplementarity principle's actual implementation eleven whole yearsafter the ratification of the Rome Statute of the InternationalCriminal Court.
On the other hand, in 2017, ChiefProsecutor Fatou Bensouda invoked the principle of complementarity inthe situation between Russia and Georgia in the Ossetia region.Moreover, following the threats of certain African states (initiallyBurundi, Gambia and South Africa) to withdraw their ratifications,Bensouda again referred to the principle of complementarity as a coreprinciple of ICC's jurisdiction and has more extensively focused onthe principle's application on the latest Office of The Prosecutor'sReport on Preliminary Examination Activities 2016.
Some advocates have suggested that theICC go "beyond complementarity" and systematicallysupport national capacity for prosecutions. They argue that nationalprosecutions, where possible, are more cost-effective, preferable tovictims and more sustainable.
Jurisdiction over corporations
There is a debate on whether the ICCshould have jurisdiction over corporations who violate internationallaw. Supporters argue that corporations can and do commit humanrights violations, such as war crimes linked to raw materials inconflict zones. Critics argue that prosecuting corporations wouldcompromise the principle of complementarity, that it would givecorporations excessive power under international law, or that itwould compromise voluntary initiatives by companies. John Ruggie hasargued that jurisdiction of corporations under international lawshould be limited to international crimes, while NicolásCarrillo-Santarelli of La Sabana University argues that it shouldcover all human rights violations.
Despite its lack of jurisdiction, theICC announced in 2016 that it would prioritize criminal cases linkedto land grabbing, illegal resource extraction, or environmentaldegradation caused by corporate activity. The proposed crime ofecocide would have jurisdiction over corporations as well asgovernments.