significant step forward in terms of the

implementation of international criminal law

because it not only contributes to the development of
international norms, but also ensures their
application in concrete cases of disrespect, with a
direct impact on national and international levels
(International Law and Domestic [Municipal] Law,
Law and Decisions of International Organizations
and Courts).

2 The ICC was established under the Rome Statute

adopted by 120 States on 17 July 1998 during the
United Nations Diplomatic Conference of
Plenipotentiaries on the Establishment of an
International Criminal International Criminal Court in Rome (‘Rome
Conference’; Conferences and Congresses,
Court (ICC) International). The 60th instrument having been
deposited on 11 April 2002, the Rome Statute entered
into force in line with its Art. 126 (1) on 1 July
Hans-Peter Kaul 2002—at that time, 66 States had ratified the Rome
Statute (Treaties, Conclusion and Entry into Force).
Content type:
Encyclopedia entries 3 The ICC is rooted in the early development of the
Article last updated: international law of armed conflict (Humanitarian
December 2010 Law, International). Its history began in 1872 when
Product: the Swiss president of the International Committee of
Max Planck Encyclopedia of Public the Red Cross (ICRC), Gustave Moynier, drafted the
International Law [MPEPIL] first statute for an international criminal court.
Subject(s): However, his idea did not find sufficient support, not
International Criminal Court (ICC) — even after the world had experienced the trauma of
International criminal courts and tribunals — World War I. Art. 227 Versailles Peace Treaty
Procedure — Prosecution — Torture (1919), containing a proposition for an ad hoc
tribunal to punish the German emperor, was never
Published under the auspices of the Max Planck implemented. After World War II, the victorious
Foundation for International Peace and the Rule of Allied Powers, shocked by the large-scale atrocities
Law under the direction of Rüdiger Wolfrum. committed during the war, decided to try those
mainly responsible before International Military
Tribunals in Nuremberg and Tokyo. These famous
A. Historical proceedings took place in 1945–46 and 1946–48,
respectively, laying down the foundations for
Background and international criminal justice in terms of both the
definition of international crimes and international
Objectives of the Court individual criminal responsibility. Art. 6 Convention
on the Prevention and Punishment of the Crime of
1 The International Criminal Court (‘ICC’) is the Genocide (‘Genocide Convention’), which foresees
first permanent treaty-based international tribunal to the establishment of an ‘international penal tribunal’,
deal with individual criminal responsibility for the the Universal Declaration of Human Rights (1948),
most serious international crimes of concern to the and the Geneva Conventions I–IV (1949) reflect an
international community as a whole where national arising awareness in the international community as
jurisdictions are unwilling or unable genuinely to a consequence of the foregoing experiences.
investigate or prosecute. The ICC represents a Nevertheless, initiatives such as the 1950 Principles
of International Law Recognized in the Charter and
the Judgment of the Nuremberg Tribunal ([1950] vol International Relations). It was followed by a
II UNYBILC 191) as well as the 1954 Draft Code of Preparatory Committee for the Rome Conference.
Offences against the Peace and Security of Mankind The Rome Conference finally took place from 15
([1954] vol II UNYBILC 112), both adopted by the June to 17 July 1998. After the adoption of the Rome
International Law Commission (ILC), did not result Statute on the last day of the Rome Conference and
in international treaties or institutions. its entry into force on 1 July 2002, the ICC was
inaugurated in The Hague, and the first 18 judges of
4 In the second half of the 20th century, international the ICC were sworn in on 11 March 2003.
law developed further, from a system of co-existence
to a more integrated system of co-operation. This 7 The ICC aims to hold individuals accountable for
development was paralleled by the evolution of a crimes that fall into the category of most grave and
system of human rights protection. Nevertheless, large-scale violations of common values of
States were not yet willing to set aside considerations humanity. In that sense, it shall prevent impunity
of sovereignty and the principle of the domaine while also setting up a permanent system to deter
réservé in the fields of criminal law and prosecution. potential offenders world-wide, especially with
Moreover, the political division of the world created regard to those mainly responsible who would try to
by the Cold War (1947–91) did not allow for hide behind high hierarchical positions and
universal solutions in such delicate matters. influential networks on the national or regional level.
An important further objective is the improvement of
5 It was only after the fall of the Berlin Wall that this solidarity within the international community in
situation changed fundamentally (Germany, respect of defending the interests of victims of
Unification of; Berlin [1945–91]). In response to a international crimes by bringing more justice to the
motion by Trinidad and Tobago in 1989 to combat world (see also Transitional Justice in Post-Conflict
drug trafficking by means of an international Situations; Victims’ Rights), even to the most remote
criminal court (Narcotic Drugs; Transnational areas in the world. The ICC must be detached from
Organized Crime), the UN General Assembly political or other inappropriate considerations,
(United Nations, General Assembly) invited the ILC leading to a suitable selection of cases in order to
to resume the drafting of an ICC Statute, a project the guarantee equality before the law to all accused,
ILC had already commenced in 1949, but interrupted victims, and concerned States. The mere existence of
later for lack of support. At the same time, the the ICC with its inherent concepts of
international community was again aroused by complementarity and subsidiarity to national
dramatic human catastrophes, with war crimes, jurisdictions could strengthen the functioning of
crimes against humanity, and even genocide being national prosecution of international crimes and
committed this time in dismembering Yugoslavia encourage its further development (International
(Yugoslavia, Dissolution of) and Rwanda. The UN Criminal Courts and Tribunals, Complementarity
Security Council (United Nations, Security Council) and Jurisdiction; International Law and Domestic
took decisions under Chapter VII United Nations [Municipal] Law). Last, but not least, a successful
Charter to create two ad hoc tribunals, the ICC open to civil society will also heighten public
International Criminal Tribunal for the Former confidence in and support for the international
Yugoslavia (ICTY) in 1993 and the International system as a whole.
Criminal Tribunal for Rwanda (ICTR) in 1994.

6 Energized by the end of the East–West conflict and B. Structure and

supported by more and more States, the ILC again
began working in earnest on a Draft Code of Crimes Organs
against the Peace and Security of Mankind ([1991]
vol II part II UNYBILC 94), which was adopted on 1. The Court
first reading in 1991, and a Draft Statute for an
International Criminal Court, which was adopted in
8 The institution created by the Rome Statute is an
1994. An Ad hoc Committee of State
independent international organization with
Representatives was established to continue the
international legal personality that disposes of the
drafting work in 1994 (Representatives of States in
necessary capacities to act on the international scene 13 Judges are nominated by States Parties and
and that enjoys immunity on the territories of States elected by the ASP for a term of nine years. Elections
Parties (International Organizations or Institutions, take place every three years for one third of the
General Aspects; International Organizations or judges. In order to establish this rhythm, the judges
Institutions, Privileges and Immunities). At the same elected in the first election in 2003 drew lots in order
time, the ICC is a complex judicial machinery for the to determine who was to serve an initial term of three,
prosecution and trial of perpetrators of international six, or nine years. Except for those judges who were
crimes. initially elected for a term of three years, judges
generally may not be re-elected once their term of
9 The seat of the ICC has been established in The office has elapsed.
Hague, The Netherlands (International
Organizations or Institutions, Headquarters). The 14 According to Art. 36 (3) Rome Statute,
funds of the ICC and the Assembly of States Parties candidates must be of high moral character,
(‘ASP’) are provided for through assessed impartiality, integrity, and possess the qualification
contributions made by States Parties and voluntary for the highest judicial offices in their countries.
donations from private and governmental sources They must be knowledgeable either in criminal law
(International Organizations or Institutions, and procedure or in relevant areas of international
Financing of). law. Equally important is the representation of the
principal legal systems of the world, an equitable
10 As of December 2010, 114 States have ratified geographic representation, and a fair representation
the Rome Statute and thereby accepted the of female and male judges. Finally, States Parties are
jurisdiction of the ICC pursuant to Art. 12 (1) Rome obliged to take into account the need for judges with
Statute. In that sense, the ICC is on its way to expertise in specific fields, such as gender-based
becoming a truly universal judicial body. In 2007, crimes, and children and armed conflict.
Japan, as a major player amongst the Asian States,
ratified the Rome Statute. However, several 15 Several rules aim to guarantee the independence
important States still maintain their more or less firm and impartiality of judges, chief among them Art. 40
objections to the institution. Above all, the United Rome Statute, which prohibits activities that are
States has not ratified the Rome Statute, even though likely to interfere with the judicial function or to
President Obama seems to have abandoned the affect confidence in the independence of a judge.
explicit hostility towards the court which Full-time judges may not exercise any other
characterized the relations between the ICC and the professional occupation at all. According to Art. 41
US government under the administration of George Rome Statute, a judge may, at request, be excused by
W Bush. the Presidency. Where the impartiality of a judge in
a given case is in doubt, the prosecutor or the accused
may request the disqualification of that judge. The
2. Organs decision on such request is taken by an absolute
majority of the judges (Art. 41 (2) (c) Rome Statute).
11 As listed in Art. 34 Rome Statute, the ICC is
The Code of Judicial Ethics adopted by the judges in
composed of four organs: the two judicial organs, ie
2005 provides that judges must not only uphold the
the Presidency and the chambers divisions; the
independence of their office and act impartially, but
Office of the Prosecutor (‘OTP’); and the Registry.
must also act to further confidence in their
independence and the appearance of impartiality.
(a) The Judges
16 Apart from their mentioned role in the
12 Making up the two judicial organs and fulfilling disqualification of a judge, the judges as a group also
the actual judicial function of the ICC, its judges have other responsibilities under the Rome Statute,
have a central role in the court’s functioning inter alia, adopting the Regulations of the Court
(International Courts and Tribunals, Judges and (‘ICC Regulations’) necessary for its routine
Arbitrators). According to Art. 36 Rome Statute, the functioning (Art. 52 Rome Statute) and proposing
number of judges at the ICC is 18. This number may amendments to the Rules of Procedure and Evidence
be increased if the need arises. (‘RPE’; Art. 51 (2) (b) Rome Statute) and the
Elements of Crimes (Art. 9 (2) (b) Rome Statute), (i) The Pre-Trial Division
which may then be adopted by the ASP.
22 The Pre-Trial Division is composed of not less
(b) The Presidency than six judges who sit in pre-trial chambers made up
of three judges. With regard to certain decisions, the
17 The Presidency consists of the president and a function of the pre-trial chambers may be carried out
first and a second vice-president, who are elected by a single judge elected from among the chamber’s
from among the judges by an absolute majority and members (Art. 39 (2) (a), (b) (iii) Rome Statute).
serve for a term of three years (Art. 38 Rome
Statute). They are eligible for re-election once. 23 In general, the pre-trial chamber has two main
functions. It decides whether, on the basis of the case
18 The general responsibility of the Presidency is the brought by the prosecutor, there is prima facie
proper administration and efficient management of evidence warranting a trial, in which case it confirms
the ICC, with the exception of the OTP (Art. 38 (3) the charges (Art. 61 Rome Statute). It also decides
(a) Rome Statute). In this sense, the Presidency most questions relating to jurisdiction and
decides on whether or not to require judges to serve admissibility so that those, in principal, do not
on a full-time basis (Art. 35 (3) Rome Statute) and burden an eventual subsequent trial.
may propose to the States Parties to increase the
number of judges if necessary (Art. 36 (2) (a) Rome 24 The main responsibility of the pre-trial chamber
Statute). It may also waive the privileges and is to supervise and review the activities of the OTP
immunities of the registrar (Art. 48 (5) (b) Rome especially with regard to the exercise of the
Statute). prosecutor’s proprio motu powers (Art. 15 (3)–(5)
Rome Statute) and decisions not to investigate or
19 Besides this general responsibility, the prosecute (Art. 53 (3) Rome Statute) and to ensure
Presidency has several competencies concerning the the proper course of the preliminary proceedings.
actual judicial function of the ICC: it assigns cases to
the pre-trial and trial chambers (Art. 61 (11) Rome 25 The role of the Pre-Trial Division must still be
Statute; Reg. 46 ICC Regulations), deals with shaped by practice and jurisprudence. It is neither
requests by a judge (Art. 41 (1) Rome Statute) or the directly comparable to that of the juge d’instruction
prosecutor (Art. 42 (6) Rome Statute) to be excused in, for example, the French system nor to the role of
from a case, and decides which of the ICC’s courts with regard to investigations in other criminal
decisions are of fundamental importance and, thus, law systems. This is especially true with regard to its
to be published in all the official languages of the powers vis-à-vis the prosecutor: the Rome Statute
ICC (Art. 50 (1) Rome Statute). generally indicates an active role for the judiciary
comparable to civil law systems and not the
20 Besides those competencies of the Presidency, unlimited freedom of action for the prosecution that
the president also has further competencies, among exists in most common law systems. In the interests
which are the representation of the ICC in concluding of justice and efficiency, a proper balance between
the Relationship Agreement with the United Nations the importance of an independent prosecution and
(UN) (‘Relationship Agreement’) and the the necessity of judicial supervision needs to be
Headquarters Agreement with the Host State found.
(‘Headquarters Agreement’; Arts 2, 3 Rome Statute).
The president is also responsible for oversight over (ii) The Trial Division
the registrar (Art. 43 (2) Rome Statute).
26 At least six judges form the Trial Division, which
(c) The Chambers Divisions is divided into trial chambers composed of three
judges (Art. 39 (1), (2) (b) (ii) Rome Statute). The
21 The chambers of the ICC are organized into three trial chamber is responsible for the main part of the
divisions: the Pre-Trial Division; the Trial Division; proceedings, ie the actual trial, culminating in the
and the Appeals Division. decision on guilt or innocence (Art. 74 Rome Statute)
and on a sentence in case of conviction (Art. 76
Rome Statute).
27 The trial chamber can also sanction misconduct interests of justice for the investigation and
before the ICC and has jurisdiction over offences prosecution. During its investigations, which usually
committed against its administration of justice, such comprise fact-finding missions in the field, the OTP
as giving false testimony, presenting false or forged collects, examines, and tests evidence and takes
evidence, intimidating or retaliating against testimonies and statements of witnesses. It must
witnesses and ICC officials, as well as the acceptance investigate incriminating and exonerating
of bribes by ICC officials (Arts 70–71 Rome Statute). circumstances equally and take into account the
interests of victims and witnesses (Art. 54 (1) (a)
(iii) The Appeals Division Rome Statute). In view of the limited resources of the
ICC, the prosecutor stated that as a general rule, the
28 The president and four other judges are assigned OTP should focus its investigative and prosecutorial
to the Appeals Division, which at the same time efforts and resources on those who bear the greatest
constitutes the Appeals Chamber. These judges are responsibility such as the leaders of the State or
the only ones who are excluded from rotation within organization allegedly responsible for those crimes
the chambers (Art. 39 (1), (2) (a), (4) Rome Statute). (Heads of Governments and Other Senior Officials;
Heads of State).
29 The Appeals Chamber decides on appeals against
decisions on guilt or innocence or on sentence as well 33 The proprio motu powers of the prosecutor are of
as on interlocutory appeals, which may be brought paramount importance to the idea of independent
against certain decisions of the pre-trial or trial international justice in criminal matters. Not
chambers while the respective proceedings are still surprisingly, these powers continue to be a matter of
on-going (Arts 81–82 Rome Statute). concern for certain States. Under Arts 13 (c) and 15
Rome Statute, the prosecutor is empowered to
30 Finally, the Appeals Chamber also decides on initiate investigations ex officio solely based on his
applications for revision of final judgments (Art. 84 or her own appreciation of a certain situation or
Rome Statute) as well as for the disqualification of information. However, the OTP needs prior
the prosecutor (Art. 42 (8) Rome Statute). authorization from the pre-trial chamber, which is
intended to counterbalance the considerable
(d) The Office of the Prosecutor competencies of the prosecutor by means of proper
judicial control (Art. 15 (3)–(5) Rome Statute). In
31 The OTP is an independent organ of the ICC with general, the pre-trial chamber also monitors the
high internal autonomy for self-organization prosecutor’s activities to ensure the integrity and
according to the necessities of its functions. It is fairness of the proceedings (Fair Trial, Right to,
responsible for the reception and examination of International Protection).
referrals and information on crimes as well as for
carrying out investigations and prosecutions (Art. 42 (e) The Registry
(1) Rome Statute). The OTP is headed by a
prosecutor and one or more deputy prosecutors who 34 The Registry is responsible for the non-judicial
shall be persons of high moral character with aspects of the administration and servicing of the
competency and experience in criminal trials. The ICC (Art. 43 Rome Statute). The registrar is the
ASP elects them for a non-renewable term of nine principal administrative officer of the ICC. The
years during which, in order to guarantee their person is recommended by the ASP, elected by an
independence, they may not have other professional absolute majority of the judges for a five-year term,
occupations or exercise possibly interfering and may be re-elected once. The registrar may be
activities. In cases of potential partiality, they can be assisted by a deputy registrar.
excused or disqualified (Art. 42 (2)–(5) Rome
Statute). 35 The main functions of the Registry can be divided
into two general categories: the first is a wide variety
32 Pursuant to Art. 53 Rome Statute, the OTP first of functions within the general administration of the
proceeds to a preliminary assessment with regard to ICC, such as personnel (Art. 44 Rome Statute),
the jurisdiction of the ICC, admissibility, and budget and finance questions (see the Financial
Regulations and Rules), security and safety (Rule 13 economy of the ICC, the ASP may even create an
(2) RPE), and oversight of persons in the custody of oversight mechanism for inspection, evaluation, and
the ICC (Reg. 90 ICC Regulations). Second, the investigation of the ICC (Art. 112 (4) Rome Statute).
Registry provides assistance in the actual judicial
work of the ICC, such as maintenance of official case
records, circulation of information and official C. Scope and
documents among parties, and staff or translation
services. The Registry is also concerned with matters Functioning
concerning the defence and victims and, therefore,
comprises sections concerned with victim
participation in trials (Reg. 86 (9) ICC Regulations)
1. Jurisdiction and Admissibility
and support and protection for victims and witnesses
39 The ICC is not a court with universal jurisdiction.
(Art. 43 (6) Rome Statute), as well as a section that
One of its fundamental principles is the principle of
assists the defence (see Rules 20–22 RPE). Finally,
complementarity with regard to national criminal
two independent Offices of Public Counsel, one for
proceedings, meaning that the ICC will only
victims and one for the defence, are part of the
investigate and prosecute cases in which national
Registry (Regs 77, 81 ICC Regulations).
courts are unwilling or unable genuinely to
investigate or prosecute (Art. 17 (1) Rome Statute).
3. The Assembly of States The Rome Statute recognizes the primacy of national
Parties prosecutions and, thus, reaffirms State sovereignty,
especially the sovereign and primary right of States
to exercise criminal jurisdiction (Criminal
36 The specific character of the ICC as an
Jurisdiction of States under International Law;
international organization has led to an important
International Criminal Jurisdiction, Protective
role for the ASP. Each State Party has one vote and
Principle; Jurisdiction of States). In other words, the
can send one delegate to the Assembly, which elects
scope of activity of the ICC is quite limited and
a permanent secretariat and a bureau. If possible, the
restricted to the highest common denominator States
ASP shall reach its decisions by consensus;
could agree upon, taking into account concerns of
otherwise, a two-thirds majority for matters of
certain States of a too powerful independent
substance and a simple majority for matters of
international justice institution.
procedure are necessary (Art. 112 Rome Statute;
International Organizations or Institutions, Voting
Rules and Procedures). (a) Jurisdiction ratione materiae

37 The ASP exercises the main legislative and 40 The ICC is competent to deal with an exhaustive
oversight functions: it adopts most of the list of international core crimes specified in Arts 6 to
fundamental legal texts, provides for management 8 Rome Statute, further developed in the Elements of
oversight regarding the administration of the ICC, Crimes. According to Art. 5 Rome Statute, the
and considers and decides on the budget. It elects the selection of core crimes for which the ICC is
judges (Art. 36 Rome Statute), the prosecutor, and competent is limited to ‘the most serious crimes of
the deputy prosecutor(s) 
(Art. 42 (4) Rome concern to the international community as a whole’.
Statute) and can, under specific circumstances,
decide upon their removal from office (Art. 46 Rome 41 The concept of criminal liability follows the
Statute). traditional system of definitions of crimes
comprising both factual and mental elements.
38 Other competencies of the ASP include reacting Pursuant to Art. 25 Rome Statute, the ICC may take
to non-co-operation by States with the ICC 
(Art. into account different forms of participation in
87 (5), (7) Rome Statute), the settlement of disputes punishable acts (Criminal Responsibility, Modes of).
between States Parties (Art. 119 (2) Rome Statute), Besides the actual perpetration, it can also punish
and the approval of the Relationship Agreement and various other forms of participation in a crime such
of the Headquarters Agreement (Arts 2, 3 (2) Rome as perpetration jointly with or through another
Statute). In order to enhance the efficiency and person, aiding and abetting, ordering and soliciting,
as well as contributing to the commission of a crime the Elements of Crimes clarifies that ‘a policy may,
by ‘a group of persons acting with a common in exceptional circumstances, be implemented by a
purpose’ (Art. 25 (3) (d) Rome Statute). Art. 28 deliberate failure to take action, which is consciously
Rome Statute provides for the criminal responsibility aimed at encouraging such attack’.
of commanders and other superiors. In the case of
genocide, direct and public incitement may also be 45 Art. 7 (1) Rome Statute defines 11 crimes against
punished. There is also a provision for punishment of humanity, including crimes committed against
attempted crimes. individuals, such as murder, torture (Torture,
Prohibition of), enslavement (Slavery; Forced
(i) The Crime of Genocide Labour/Slave Labour), crimes of sexual violence,
and crimes directed against groups, such as
42 According to Art. 6 Rome Statute, the ICC’s deportation or forcible transfer of population (Forced
jurisdiction ratione materiae encompasses the crime Population Transfer; Population, Expulsion and
of genocide. The definition of this crime is taken Transfer), persecution, and the crime of apartheid. In
verbatim from Art. 2 Genocide Convention. addition to 10 specified crimes, the Rome Statute
also criminalizes ‘[o]ther inhumane acts of a similar
(ii) Crimes against Humanity character intentionally causing great suffering, or
serious injury to body or to mental or physical health’
43 Crimes against humanity are laid down in Art. 7 (Art. 7 (1) (k) Rome Statute).
Rome Statute. While the concept of crimes against
humanity has been known since the Charter of the 46 Art. 7 (2) Rome Statute further specifies certain
International Military Tribunal, Art. 7 Rome Statute crimes as contained in Art. 7 (1) Rome Statute.
together with its Elements of Crimes (Art. 9 Rome
Statute) represent the most concrete and detailed 47 Art. 7 Rome Statute comprises several acts
international codification of the substantive content linkable to genocidal incidents, such as murder,
of crimes against humanity (Codification and forced pregnancy with the intent of affecting the
Progressive Development of International Law). It ethnic composition of a population (Ethnic
includes several important novel crimes, such as the Cleansing), extermination, persecution, and
crime of apartheid, forced pregnancy, and enforced violations of physical integrity. The article could
disappearances. therefore also serve as a subsidiary provision if a
suspect cannot be held responsible for genocide.
44 Art. 7 (1) Rome Statute lays down that in order
to constitute a crime against humanity, acts must be (iii) War Crimes
‘committed as part of a widespread or systematic
attack directed against the civilian population, with 48 The third category of crimes within the
knowledge of the attack’. Art. 7 (2) (a) Rome Statute jurisdiction of the ICC is war crimes as defined in
further defines the attack as the ‘multiple Art. 8 Rome Statute. The regime is inspired by the
commission of acts referred to in paragraph 1 against law of the Geneva Conventions I–IV and the rules of
any civilian population, pursuant to or in furtherance the (customary) international law of armed conflict
of a State or organizational policy to commit such and explicitly refers to these sources. This is
attack’, thus laying down a compromise between the especially true with regard to Art. 8 (2) (b) and (e),
position held by some States that the requirements which both criminalize, inter alia, conduct prohibited
‘widespread’ and ‘systematic’ in Art. 7 (1) Rome by Geneva Conventions Additional Protocol I (1977)
Statute should be cumulative and the position that and Geneva Conventions Additional Protocol II
either of the two requirements should suffice. Be that (1977). In order to alleviate concerns of non-
as it may, Art. (7) (2) (a) Rome Statute requires de Members to the additional protocols that they would,
lege lata that the attack against any civilian in effect, be bound even by those provisions of the
population must be ‘pursuant to or in furtherance of protocols which had not acquired the status of
a State or organizational policy to commit such customary international law, the wording ‘within the
attack’. A merely passive role in the sense of absence established framework of international law’ was
of governmental or organizational action would not added to the chapeau of Art. 8 (2) (b) and (e) Rome
be sufficient for an attack, even though footnote 6 of Statute.
49 Art. 8 (1) Rome Statute stresses that the ICC shall (Introduction Art. 8 Elements of Crimes). The link,
have jurisdiction in respect of war crimes ‘in also called ‘nexus’, between the illegal acts and the
particular when committed as part of a plan or policy armed conflict cannot be merely accidental but must
or as part of a large-scale commission of such represent a true connection.
crimes’. This so-called threshold clause is the result
of a compromise with States worried about an (iv) The Crime of Aggression
international criminal trial for isolated acts of
individuals from their troops. 53 The crime of aggression is included in the list of
crimes within the jurisdiction of the ICC in Art. 5
50 The Rome Statute distinguishes between war Rome Statute (Peace, Right to, International
crimes in international armed conflicts (Armed Protection). At the review conference in Kampala in
Conflict, International) and in armed conflicts not of 2010, the States Parties adopted a historic
an international character (Armed Conflict, Non- amendment to the Rome Statute, including a
International), and between violations of the Geneva definition of the ‘crime of aggression’ and the ‘act of
Conventions I–IV and other violations. Accordingly, aggression’, as well as determining preconditions
the catalogue of altogether 50 war crimes is divided and procedural provisions for exercising the ICC’s
into four lists: grave breaches of the Geneva jurisdiction over the crime of aggression. This
Conventions I–IV in international armed conflict jurisdiction needs to be activated by the States Parties
(Art. 8 (2) (a) Rome Statute); other serious violations on 1 January 2017 at the earliest. The court will only
of the law of international armed conflict (Art. 8 (2) have jurisdiction over cases of aggression committed
(b) Rome Statute); serious violations of the common at least one year after the ratification or acceptance
Art. 3 Geneva Conventions I–IV in non-international of the amendments by at least 30 States Parties.
armed conflict (Art. 8 (2) (c) Rome Statute); and
other serious violations of international law in non- 54 The most controversial part of the Kampala
international armed conflict (Art. 8 (2) (e) Rome negotiations was the question whether proceedings
Statute). According to 
Art. 8 (d) and (f) Rome can be triggered by actors other than the UN Security
Statute, acts committed in situations of internal Council. The Kampala negotiations had to deal with
disturbances and tensions, such as, for example, highly sensitive issues centred on the ICC’s
riots, are excluded from the scope of the article (cf relationship with the UN Security Council in cases of
Art. 1 (2) Additional Protocol II). aggression, especially concerning the Security
Council’s power under Art. 39 UN Charter to
51 The definitions provided for by the Rome Statute ‘determine the existence of any … act of aggression’.
and the related Elements of Crimes are very detailed The permanent members of the Security Council and
and sometimes more specific than the corresponding some other States had proposed that such a
rules of the international law of armed conflict. determination by the Security Council should be a
However, the definitions must be read in light of precondition for the exercise of the ICC’s
existing international humanitarian law and jurisdiction, a position that was opposed primarily by
interpreted ‘within the established framework of the States from the Non-Aligned Movement (NAM). In
international law of armed conflict including, as the final compromise, not only the Security Council
appropriate, the international law of armed conflict but also States Parties as well as the prosecutor can
applicable to armed conflict at sea’, according to the trigger proceedings, although under strict conditions.
introduction to Art. 8 Elements of Crimes. In respect of a non-State Party the ICC shall not
exercise its jurisdiction over the crime of aggression
52 Pursuant to the Elements of Crimes, there is no when committed by that State’s nationals or on its
requirement for a legal evaluation by the perpetrator territory (see Art. 15bis (5) 
Rome Statute).
as to the existence of an armed conflict or its Furthermore, the exercise of jurisdiction over the
character as international or non-international and no crime of aggression committed by a State Party is
requirement for awareness by the perpetrator of the subject to the authorization by the entire Pre-Trial
facts that established the character of the conflict as Division (when proceedings are triggered by a State
international or non-international but only for the Party or by the prosecutor) and require the aggressor
awareness of the factual circumstances that State’s prior consent. Interestingly, this consent is
established the existence of an armed conflict presupposed unless the State Party ‘has previously
declared that it does not accept such jurisdiction by 57 A restrictive exception is the so-called
lodging a declaration with the Registrar’ (Art. 15bis ‘transitional provision’ of Art. 124 Rome Statute,
(4) 
Rome Statute). One aspect of the Kampala which allows new States Parties to exclude, for a
compromise which needs to be analysed further is period of seven years after the entry into force of the
whether this ‘opt-out procedure’ may contradict the Rome Statute for themselves, war crimes involving
provision on amendments in Art. 121 (5) Rome their territory or nationals from the jurisdiction of the
Statute, which states that amendments only apply ICC. Up until 2010, two States—Colombia and
vis-à-vis those States Parties which accepted them. France—have availed themselves of this option. In
2008 France, however, withdrew its declaration. The
(b) Jurisdiction ratione temporis effects of the Colombian declaration expired on 1
November 2009.
55 The limitations resulting from the jurisdiction
ratione temporis rules of the Rome Statute are (c) Jurisdiction ratione loci and Jurisdiction
considerable. According to Art. 11 (1) Rome Statute, ratione personae
the ICC is only competent with regard to crimes
committed after the entry into force of the Rome 58 Pursuant to Art. 12 (2) (a) and (b) Rome Statute,
Statute, 1 July 2002, for original members. With the ICC has jurisdiction if crimes have been
respect to States that later become parties to the committed on the territory of a State Party including
Rome Statute, the relevant date is the first day of the vessels and aircraft if it is the State of registration
month after the 60th day following the deposit of the (Flag of Ships) or if the accused is a national of a
instrument of ratification, according to Art. 126 (2) State Party (Nationality). Accordingly, the Rome
Rome Statute. The Rome Statute has thus embodied Statute has chosen a quite classical, if not
the principle of non-retroactivity of the effect of conservative and State sovereignty-oriented,
international treaties. This is one reason why a approach with respect to the preconditions for the
different solution in the form of Mixed Criminal exercise of criminal jurisdiction. The principle of
Tribunals (Sierra Leone, East Timor, Kosovo, territoriality and the active personality principle are
Cambodia) had to be found to deal with crimes the two most recognized, indeed, universally
committed in Sierra Leone, East Timor (Timor), and accepted, bases for exercising criminal jurisdiction
Cambodia (Cambodia Conflicts [Kampuchea]). One under international law. The necessity for a link
may say that the ICC’s jurisdiction ratione temporis between a State Party and the crime means that
is set up so as to grant States tabula rasa in respect universality is not, as such, a concept of the Rome
of their nationals for events happening before the Statute. In particular, the jurisdiction is not linked to
entry into force of the Rome Statute. This principle the custodial State, an omission which has often been
was a common negotiating basis for most, if not all, criticized. Before and during the Rome Conference,
States participating in the elaboration of the Rome most States had supported a proposal according to
Statute. which custody of a suspect by a State Party would
have been a sufficient basis for the jurisdiction of the
56 With regard to Art. 126 (2) Rome Statute, ICC. This would have strengthened the deterrent
however, the Statute contains a certain degree of effect of the Rome Statute since perpetrators would
flexibility. First, any non-Member State can make a not have been able to enter the territory of any State
formal declaration under Art. 12 (3) Rome Statute Party without fear of being taken into custody and
accepting the jurisdiction of the ICC with regard to surrendered to the ICC. Another basis for the ICC’s
certain crimes. Côte d’Ivoire was the first State to use jurisdiction which was rejected is the passive
this possibility in 2005. Second, the UN Security personality principle, which would have granted
Council may refer a situation to the ICC based on jurisdiction where the victim was a national of a State
Art. 13 (b) Rome Statute; however the ICC remains Party.
bound by the limitations to the jurisdiction ratione
materiae. In both cases, only the basic rule of Art. 11 59 The most crucial exception to the restrictive
(1) Rome Statute—limiting the jurisdiction to crimes regime of jurisdiction summarized above is the
committed after 1 July 2002—applies. possibility of a UN Security Council referral
pursuant to Art. 13 (b) Rome Statute. This provision
gives the UN Security Council the power to refer to option for non-Member States to accept on an ad hoc
the ICC, in a resolution under Chapter VII UN basis the ICC’s jurisdiction ‘with respect to the crime
Charter, situations in which crimes under the Rome in question’ according to Art. 12 (3) Rome Statute
Statute appear to have been committed regardless of (see para. 56 above). In order to avoid the risk that
whether the preconditions for the exercise of non-Member States may, for their own reasons,
jurisdiction as referred to in Art. 12 (2) (a) and (b) adopt a ‘pick and choose’ attitude with respect to the
Rome Statute are fulfilled. In such cases, which may crimes in question committed on their territory and
also concern non-Member States, the legal basis of thus, the further risk of so-called ‘asymmetric
the ICC’s mandate lies in the Security Council’s liability’, a broad interpretation of the term ‘crime in
powers under Chapter VII of the UN Charter. In question’ has been chosen in Rule 44 RPE, which
other words, the ICC may gain some sort of universal refers to a situation and not to a single incident.
jurisdiction if the Security Council actively supports
the ICC. Its Resolution 1593 (2005) of 31 March (d) The Principle of Complementarity
2005, in which the Security Council ‘decide[d] to
refer the situation in Darfur since 1 July 2002 to the 61 The principle of complementarity, as provided
Prosecutor of the [ICC]’, constituted the first time for in particular in Art. 17 Rome Statute, is the
that the Security Council used its powers under Art. decisive basis of the entire ICC system.
13 (b) Rome Statute. In contrast to UNSC Complementarity entails that judicial proceedings
Resolutions 827 (1993) of 25 May 1993 and 955 before the ICC are only admissible if and when States
(1994) of 8 November 1994, the mandate resolutions which would normally have jurisdiction are either
for the ICTY and the ICTR, respectively, Resolution unwilling or unable genuinely to exercise their
1593 does not contain a binding obligation on UN jurisdiction. It is important to understand the
Member States to co-operate with the ICC in the principle of complementarity as the common
fulfilment of its mandate regarding Darfur, Sudan. In response of the international community to the
the situation regarding Darfur, four cases with six question of the relationship between the jurisdiction
suspects are being heard before a pre-trial chamber. of the ICC and the various national criminal
On 4 March 2009 a pre-trial chamber issued an arrest jurisdictions. Consensus among UN Member States
warrant against the current president of Sudan, Omar on the sovereignty-friendly principle of
Hassan Ahmad al-Bashir, on the basis of five counts complementarity, as summarized above (para. 39),
of crimes against humanity and two counts of war was the decisive basis for the future ICC and was,
crimes. The majority of the chamber found, however, therefore, the conditio sine qua non for the convening
that the prosecutor did not provide enough evidence of the Rome Conference, the adoption of the Rome
to include the crime of genocide in the charges. This Statute, and the subsequent establishment of the ICC.
decision was appealed by the prosecutor and on 3 Thus, in order not to challenge the jurisdiction of
February 2010, the appeals chamber directed the pre- Nation States per se, the ICC was given a
trial chamber to decide anew on the inclusion of complementary nature as expressed in the 10th
genocide charges in the warrant of arrest as the paragraph in the Preamble to the Rome Statute and
standard of proof used by the pre-trial chamber was Art. 1 Rome Statute. Functioning as a subsidiary
found to be too demanding. A second arrest warrant instance and as a court of last resort, it takes over the
was then issued on 12 July 2010, including three tasks of passive, unwilling, or dysfunctional internal
counts of genocide. Whereas three suspects appeared jurisdictions as in failing States when there is a need
voluntarily before the ICC, the other three suspects to preserve the interest of the international
(among them President al-Bashir) remain at large. It community as a whole. The principle of
remains to be seen whether UN Security Council complementarity was preferred to the concept of
members and States Parties will provide enough concurrent jurisdiction adopted for the ad hoc
support for the extremely difficult task of international criminal tribunals. It is now reflected in
investigating and prosecuting crimes committed in several important procedural provisions of the Rome
this situation and contribute to the arrest of the Statute.
suspects at large.
62 First of all, the principle of complementarity is
60 A second important exception enlarging the applicable regardless of the trigger mechanism. The
competency of the ICC is the above-mentioned Office of the Prosecutor must analyse the role that
national jurisdictions play in a certain situation at the Parties and States which normally would exercise
very beginning of the preliminary examination on jurisdiction so that they are in a position to demand
whether there is a sufficient basis to proceed (Art. 53 the deferral of the investigation of the persons
(1) (b) Rome Statute). The rules on admissibility in concerned in order to investigate themselves.
Art. 17 Rome Statute clearly express that the ICC is Consequently, the States remain in a priority position
not competent if a case is investigated or prosecuted to decide about their role even after the prosecutor
on the national level; if, after an investigation, the has decided that there would be a reasonable basis to
national jurisdiction has decided not to prosecute; or proceed in light of Art. 17 Rome Statute. If the State
if the suspect has already been tried for the conduct so demands, the prosecutor must defer to the State’s
in question (Ne bis in idem). In that respect, national investigation but may request that the State make
proceedings must encompass both the person and the periodic progress reports 
(Art. 18 (2), (5) Rome
conduct which is the subject of the case before the Statute).
ICC. Only if a State is or has been unwilling or
unable genuinely to investigate or prosecute can the 66 Only upon the application of the OTP can the pre-
ICC claim competency. trial chamber authorize a continuation of the ICC’s
investigations or necessary investigative steps to
63 In order to determine a case of unwillingness, preserve evidence. The concerned State can appeal a

Art. 17 (2) Rome Statute states in broad terms the decision by the pre-trial chamber and then challenge
relevant criteria: proceedings undertaken for the the admissibility of the case under Art. 19 Rome
purpose of shielding a person; unjustified delay or Statute. A deferral may be reviewed by the
conduct of proceedings inconsistent with the intent prosecutor if there is a significant change of
to bring the person to justice; or a lack of circumstances based on the State’s unwillingness or
independence and impartiality. It seems noteworthy inability genuinely to carry out the investigation. It is
that these standards have been criticized as too high. obvious that the multiple possibilities to challenge
Future decisions will show to what extent doubts in admissibility on the ground of complementarity can
that respect are appropriate. In addition, the wording delay and hinder the course of proceedings and
of the provision provides no answer to the question investigations, possibly leading to important
of how the ICC should deal with amnesties, pardon, obstacles, for example, with regard to the collection
or parole granted in the aftermath of a national trial, of evidence. The goodwill of States and their
which might be attempts by the State to shield a confidence in the ICC is particularly crucial at this
perpetrator. In such situations, the ICC may also have point because large room for manoeuvre was left to
to take into account the principle of ne bis in idem as them, which in turn might be used for obstruction.
referred to in Art. 20 Rome Statute.
67 Cases are also inadmissible if not of sufficient
64 Inability can be asserted if the State is unable to gravity (Art. 17 (1) (d) Rome Statute). This
obtain the accused or necessary evidence and additional threshold is not precisely defined in the
testimony or if it is otherwise unable to carry out its Rome Statute, but its aim is to ensure that the ICC
proceedings either due to the national judicial will indeed deal only with crimes of a grave
system’s total or substantial collapse or its dimension.
unavailability. Based on Art. 19 (1) Rome Statute,
the ICC may determine admissibility on its own
motion. Moreover and according to Art. 19 (2) Rome
2. Applicable Law
Statute, the suspect, a State with jurisdiction over the
68 Pursuant to the hierarchy of Art. 21 (1) Rome
case, or a State coming under the categories of Art.
Statute, the ICC applies in the first place the Rome
12 Rome Statute have the right to challenge
Statute, the Elements of Crimes, and the Rules of
admissibility prior to, or at, the commencement of
Procedure and Evidence. In general, these
the trial. In case of such a challenge, the execution of
instruments constitute a quite comprehensive and
requests for co-operation may be postponed by the
largely self-sustaining legal regime for the ICC.
concerned States (Art. 95 Rome Statute).
Furthermore, in the framework of its self-
organization competencies, the ICC has further
65 The additional safeguard clause of Art. 18 Rome
developed important texts such as the ICC
Statute obliges the prosecutor to notify all States
Regulations (see Art. 52 Rome Statute), the Code of (a) The Pre-Trial Phase
Judicial Ethics, and the Staff Regulations.
(i) Trigger Mechanisms
69 Besides the principles referred to elsewhere in
this contribution, the Rome Statute details several 72 The proceedings at the ICC can be triggered by
general principles of criminal law applicable in the way of three different mechanisms listed in Art. 13
proceedings of the ICC. These include, first, several Rome Statute (International Criminal Courts and
principles also found in national jurisdiction, such as Tribunals, Procedure). As a variation of the classic
the principle of nullum crimen, nulla poena sine lege State complaint, every State Party can refer a
(Arts 22, 23 Rome Statute), the exclusion of criminal situation to the prosecutor (Art. 13 (a) Rome Statute).
jurisdiction over persons under a certain age (in the Consistent with the concept of the international legal
ICC’s case 18 years 
[Art. 26 Rome Statute]), interest in the liability for international crimes and its
norms on the required mental element (Art. 30 Rome fundamental value for the international community,
Statute), and grounds for excluding criminal there is no requirement of reciprocity or of a specific
responsibility (Arts 31, 32 Rome Statute). Other interest in the matter. Even though State complaints
norms are more peculiar to the ICC system, such as (Human Rights, State Complaints) have turned out to
norms on the irrelevance of official capacity (Art. 27 be of quite limited practical relevance for most
Rome Statute) and the relative irrelevance of the international courts and human rights treaty bodies
superior orders excuse (Art. 33 Rome Statute), as (Human Rights, Treaty Bodies), the ICC’s first three
well as on command responsibility (Art. 28 Rome situations have been State referrals. More precisely,
Statute; International Criminal Courts and Tribunals, the referrals by Uganda, the Democratic Republic of
Defences). the Congo (‘DRC’; Congo, Democratic Republic of
the), and the Central African Republic were so-called
70 In the second place, the ICC will, in its self-referrals, where the concerned State itself
proceedings, apply treaties and principles and rules expressed its will that the offenders be brought to
of international law, including the established justice by the ICC. In general, it seems to be
principles of the law of armed conflict (General recognized that in making such referrals, States may
International Law [Principles, Rules and Standards]; refer situations to the ICC without explicitly stating
Sources of International Law). Finally, if the other that their legal systems are unable or unwilling to
sources do not provide for the answer needed, the investigate or prosecute. In certain constellations,
ICC may consider general principles of law derived self-referrals may thus be understood as waiver[s] of
from national laws of legal systems of the world (Art. complementarity, at least as far as Art. 17 (1) (b)
21 (1) (b), (c) Rome Statute). The actual relevance of Rome Statute is concerned.
secondary sources will be determined by the judges
in future jurisprudence. 73 A second and somewhat sensitive trigger
mechanism is the proprio motu power of the
71 The ICC is not bound by its previous decisions prosecutor based on Arts 13 (c) and 15 Rome Statute,
regarding the interpretation of principles and rules which is supposed to strengthen the independence
(Stare decisis) but may rely on them (Art. 21 (2) and efficiency of the ICC. The prosecutor has the
Rome Statute). Its application and interpretation of authority to initiate an investigation on the basis of
the sources must be consistent with internationally information received. After an analysis of such
recognized human rights (Art. 21 (3) Rome Statute). information, the prosecutor is to state a conclusion on
This rule, which indicates the special importance of whether a reasonable basis to proceed exists.
keeping international criminal law in line with However, in order actually to start the investigation,
human rights law, has already led in the first the prosecutor needs authorization by the pre-trial
decisions to quite some reliance on international chamber. This control mechanism was instituted to
human rights instruments and their interpretation by meet States’ concerns about a too powerful
treaty bodies. prosecutor who might engage in politically
motivated investigations. The pre-trial chamber
3. Procedure gives its authorization if it agrees that there is a
reasonable basis to proceed and that the ICC has
jurisdiction. The prosecutor for the first time in the
history of the ICC sought authorization from a pre- UNSC Resolution 1487 (2003) of 12 June 2003
trial chamber on 26 November 2009 for opening an exempting UN peacekeepers not nationals of a State
investigation proprio motu in relation to the post- Party from the jurisdiction of the ICC for two
election violence in Kenya 2007–8. His request has consecutive periods of 12 months each
been granted with regard to crimes against humanity (Peacekeeping Forces). The adoption of these two
by the competent Pre-Trial Chamber II, by majority resolutions has been criticized by many, including
decision of 31 March 2010. In a dissenting opinion, numerous States Parties. It was argued that invoking
the author of this article concluded that there was ‘no Art. 16 Rome Statute was not consistent with the
reasonable basis to believe that crimes … were letter and spirit of the Rome Statute and might even
committed in an “attack directed against any civilian constitute an abuse of that norm. When the second
population” … “pursuant to or in furtherance of a 12-month period under Resolution 1487 (2003) ran
State or organizational policy to commit such attack” out in 2004, efforts to extend it once more through a
as required by article 7(2)(a) of the Statute’ (Decision further resolution failed due to a lack of support from
pursuant to Article 15 of the Rome Statute on the Security Council members.
Authorization of an Investigation into the Situation
in the Republic of Kenya [Dissenting Opinion of (ii) Investigation and Prosecution
Judge Hans-Peter Kaul] ICC-01/09-19-Corr [31
March 2010] para. 4). 76 The prosecutor carries out the preliminary
examination, notably the determination on whether
74 The third trigger mechanism is an expression of there is a reasonable basis to proceed under the Rome
the important relation of the ICC with the UN Statute in accordance with Art. 53 Rome Statute.
system. The UN Security Council may, in a This first evaluation of available information
resolution under Chapter VII UN Charter, refer a comprises a test regarding jurisdiction and
situation to the prosecutor (Art. 13 (b) Rome Statute). admissibility (Art. 53 (1) (a), (b) Rome Statute). The
As mentioned above (para. 59), the Security Council prosecutor has a significant margin of discretion with
can enlarge the scope of activity of the ICC in that it respect to a third criterion, namely the question of
can refer situations in which core crimes have whether or not an investigation would serve the
allegedly been committed even if the concerned interests of justice, taking into account the gravity of
States are not parties to the Rome Statute. The the crime and the interests of the victims (Art. 53 (1)
Security Council first made use of this important (c) Rome Statute). The prosecutor has to inform the
mechanism by referring the situation in Darfur, pre-trial chamber on the decision that there is no
Sudan to the ICC in its Resolution 1593 (2005). reasonable basis to proceed. The pre-trial chamber
can review this decision at the request of the State
75 A counterpart to the power of the UN Security making the referral or the UN Security Council or, if
Council to refer situations to the ICC is the Security it was solely based on the interests of justice, on its
Council’s power under Art. 16 Rome Statute to halt own motion (Art. 53 (3) Rome Statute).
an investigation or prosecution for a renewable
period of 12 months in a resolution adopted under 77 Once the prosecutor has started an investigation,
Chapter VII UN Charter. It is widely recognized that he or she is, pursuant to Art. 54 (1) (a) Rome Statute,
the rationale for this provision is to provide the under a duty to establish the truth, covering all
Security Council in a complex international situation relevant facts and evidence whether incriminating or
in which the search for international peace and exonerating. In order to collect and examine
security may be at odds with efforts to ensure evidence, investigation teams can be sent to the
criminal justice with discretionary power to give territory of a State and enter into co-operation
preference for a period of 12 months to efforts to agreements with States and international
achieve international peace and security through organizations (International Organizations or
negotiation[s] even with those who might be Institutions, External Relations and Cooperation).
responsible for international crimes (Peaceful The prosecutor is under a firm obligation to respect
Settlement of International Disputes). The UN the interests of victims and witnesses and to keep the
Security Council, on the initiative primarily of the necessary confidentiality. For the purposes of the
US, generally invoked Art. 16 Rome Statute in investigation, the prosecutor can request the pre-trial
UNSC Resolution 1422 (2002) of 12 July 2002 and chamber to issue a warrant of arrest or a summons to
appear. The Rome Statute even guarantees that 81 Some inquisitorial elements indicate that the
persons arrested in States Parties be promptly procedural regime of the ICC refrains from applying
brought before the competent judicial authority in the the pure accusatorial model and gives an active role
custodial State in order to control the correct to the trial chamber: the judges can require the
application of the arrest warrant with a possibility of attendance and testimony of witnesses and the
applying for interim release 
(Art. 59 (2), (3) Rome production of documents and other evidence (Art. 64
Statute). (6) (b) Rome Statute; International Courts and
Tribunals, Evidence). They have explicit authority to
(iii) Pre-Trial Hearings and Hearing on the request all evidence necessary to establish the truth
Confirmation of Charges before Trial (Art. 69 (3) Rome Statute). Nevertheless, pursuant to
Art. 74 (2) Rome Statute, the judges in their decisions
78 Once a suspect or other person has been are limited to the facts and circumstances contained
surrendered to the ICC, the pre-trial chamber is in the charges of the prosecutor.
tasked, in a first appearance session, with satisfying
itself that the person has been duly informed of the 82 At the end of the trial, the judges, after a secret
charges against him or her and his or her rights under deliberation, reach their final decision on innocence
the Rome Statute (Art. 60 (1) Rome Statute). The or guilt and in the latter case, on the sentence. A
chamber also decides initially and periodically majority of judges is sufficient for any decision;
afterwards on the question of detention or interim however, judges are expected to attempt to achieve a
release and ensures that the period of detention is not unanimous decision (Art. 74 Rome Statute). The
prolonged unduly because of delays caused by the decision may only be based on evidence submitted
prosecutor (Art. 60 (2)–(4) Rome Statute). and discussed at the trial. ‘Plea bargaining’ between
the prosecutor and the defence does not bind the ICC.
79 Most importantly, according to Art. 61 Rome Before finding an accused guilty on an admission of
Statute, the pre-trial chamber decides on whether or guilt, the ICC must satisfy itself, inter alia, that the
not to confirm the charges on which the prosecutor admission is consistent with the material already
intends to seek trial. In order to do so, it holds a presented in the proceedings. This is to protect the
hearing during which both the prosecutor and the accused from false statements and to safeguard the
defence may present evidence. In exceptional interests of justice.
circumstances, the confirmation hearing may be held
in the absence of the charged person. 83 When convicted, offenders may be sentenced to
imprisonment for up to 30 years or, in exceptional
(b) The Trial circumstances, to life imprisonment. The ICC may
also impose fines and order forfeiture of proceeds,
80 Subsequent to the confirmation of charges by the property, and assets derived directly from that crime
pre-trial chamber, the Presidency constitutes a trial (Art. 77 Rome Statute). The death penalty cannot be
chamber which is responsible for the ensuing imposed.
proceedings. The trial, which is public, must be fair
and impartial as well as expeditious. It must ensure (c) Appeal and Revision
the rights of the accused and the protection of victims
and witnesses. The presence of the accused is 84 Part 8 Rome Statute provides for different kinds
mandatory. The presumption of innocence— of appeals to the Appeals Chamber, which decides on
according to which guilt must be proven by the the application by a majority in open court and
prosecutor and the court must be convinced beyond disposes of the powers of the pre-trial and trial
a reasonable doubt—is the guiding principle of the chambers mutatis mutandis. Decisions of acquittal or
trial according to Art. 66 Rome Statute. When conviction can be appealed by the prosecutor based
deciding upon the admissibility of evidence, the trial on procedural errors, errors of fact, or errors of law.
chamber may declare evidence inadmissible if it has The convicted person or the prosecutor on that
been obtained by means of a violation of the Rome person’s behalf may make an appeal on the same
Statute or internationally recognized human rights grounds and in addition, on any other ground that
(Art. 69 (7) Rome Statute). affects the fairness or reliability of the proceedings
or decision. An appeal against a sentence may be 87 As Arts 55 and 67 Rome Statute demonstrate,
brought forward on the basis of disproportion great importance was attributed to the rights of
between crime and sentence (Art. 81 Rome Statute). suspects not only during trial but also during the
The decision or sentence can be reversed or amended investigation. 
Art. 55 contains a number of due
or a new trial can be ordered. There is an explicit rule process guarantees in the pre-trial phase of criminal
against changing a decision to the detriment of the proceedings. They should be read in light of the
convicted person if the appeal was brought by that presumption of innocence as referred to in Art. 66
person or the prosecutor on that person’s behalf (Art. Rome Statute as the guiding principle. Art. 55 Rome
83 Rome Statute). Finally, orders regarding Statute contains a prohibition of coercion; duress;
reparations to victims are also subject to appeal (Art. threat; torture or other form of cruel, inhuman, or
82 (4) Rome Statute). degrading treatment; and of arbitrary arrest and
detention (Detention, Arbitrary) or deprivation of
85 In addition to appeals against final decisions, liberty (Liberty, Right to, International Protection).
parties may also bring interlocutory appeals against Furthermore, no person shall be compelled to
certain decisions of the trial or pre-trial chambers incriminate himself or herself or to confess guilt, and
according to Art. 82 Rome Statute. Decisions that every person questioned has the right to get the
may be appealed in this way include those assistance of a competent interpreter or translator if
concerning jurisdiction or admissibility, release of needed. A person who is believed to have committed
the accused, measures to preserve evidence, and a crime within the jurisdiction of the ICC has further
investigative steps. Any other decision may only be rights, of which the person must be informed along
appealed with the leave of the pre-trial or trial with the grounds for the suspicion. These are the
chamber concerned if it ‘involves an issue that would right to remain silent, the right to legal assistance,
significantly affect the fair and expeditious conduct and the right to be questioned only in the presence of
of the proceedings or the outcome of the trial’ (Art. counsel.
82 Rome Statute). If the Appeals Chamber finds by a
majority of judges that the appeal is well-founded, it 88 Art. 67 Rome Statute lists the minimum fair trial
is empowered to reverse or amend the decision or guarantees applicable in all stages of the
sentence or to order a new trial. proceedings. These include the right to be informed
and to remain silent, the right to prepare the defence
86 Finally, the convicted person or, after the in appropriate conditions and to legal assistance, the
person’s death, certain other specified persons as right to question the witnesses, and the right to have
well as the prosecutor on the convicted person’s interpretation. The accused also has a right to be
behalf, may apply for revision of the conviction or present at trial but may be removed from the
sentence upon discovery of new evidence or of the courtroom if he or she continues to disrupt the trial
fact that decisive evidence taken into account at trial (Art. 63 Rome Statute). There are currently no rules
was false, forged, or falsified. Revision may also be regarding the procedure in the case of an accused
based on serious misconduct or a serious breach of person refusing to appear before the ICC or being
duty by a judge participating in the conviction or the hindered to do so on medical reasons.
confirmation of charges 
(Art. 84 Rome Statute). In
the case of a meritorious application, the Appeals 89 The accused person is entitled to conduct the
Chamber may reconvene the original trial chamber defence in person or through legal assistance of his
or constitute a new trial chamber. It may also itself, or her own choice. If the interests of justice so require
after hearing the parties, decide whether the or the person lacks sufficient means to pay, a defence
judgment should be revised. lawyer can be assigned by the ICC. An Office of
Public Counsel for the defence was set up by the
(d) Specific Aspects Registry to safeguard the rights of the defence in the
early stages of an investigation and to provide
(i) Defence and Procedural Guarantees for the support, assistance, and information to defence
Accused counsel and suspects or accused (Reg. 77 ICC
Regulations). The chambers take measures to allow
the defence to prepare properly and the pre-trial
chamber protects the rights of the defence in unique
investigative opportunities (see Art. 56 Rome chamber and OTP if it intends to rely on an alibi or
Statute). grounds for excluding responsibility (Rule 79 RPE).

90 One aspect which is of special importance for the (ii) Protection of Victims and Witnesses
fair and equitable conduct of the proceedings is the
disclosure of evidence by the Office of the 92 Of its own motion or upon request, a chamber
Prosecutor to the defence. This concerns not only shall, according to Art. 68 Rome Statute, take
evidence that the OTP intends to rely on at the appropriate measures to protect the safety, physical,
confirmation hearing or at trial but also evidence that and psychological well-being, dignity, and privacy of
is potentially exculpatory or otherwise material to the victims and witnesses. Especially during the
preparation of the defence (Arts 61 (3) b, 67 (2) investigation, the prosecutor also has a specific duty
Rome Statute; Rules 76, 77 RPE). The rules on to ensure such protection. Examples of such
disclosure contained in the Rome Statute and the measures are proceedings in camera, audio-visual,
Rules of Procedure and Evidence are, to a large and electronic presentation of evidence and the
extent, based on those contained in the US Federal summary presentation of evidence that could
Rules of Criminal Procedure and the RPE, those of endanger the security of witnesses. A Victims and
the ICTY and the ICTR. While it is, in the first place, Witnesses Unit in the Registry, as envisaged by Art.
up to the OTP to decide which items it intends to 43 (6) Rome Statute, gives advice on appropriate
disclose, the pre-trial or trial chamber is the final protective measures, security arrangements,
arbiter in this regard. The refusal on part of the counselling, and assistance.
prosecution to disclose potentially exculpatory
evidence to the accused with reference to Art. 54 (3) 93 At the same time, these protection measures must
(e) Rome Statute caused Trial Chamber I of the ICC be reconciled with the rights of the defendant. The
on 13 June 2008 to impose a stay on the proceedings provisions on witness protection in the Rome Statute
in Prosecutor v Thomas Lubanga Dyilo. Art. 54 (3) state that such measures shall not be prejudicial to
(e) Rome Statute allows the prosecutor not to defence rights (see Art. 68 (1) Rome Statute).
disclose documents or information that he or she Finding the correct balance between those competing
obtained on the condition of confidentiality and interests will be one of the first tasks for the pre-trial
which are not for use at trial but solely for the and trial chambers.
purpose of generating new evidence. The chamber
found that the prosecution had misused the provision (iii) The Role of Victims in the Proceedings
with the effect of improperly inhibiting the
opportunities for the accused to prepare his defence 94 One important innovation of the Rome Statute is
as he was not able to access a significant body of the attention paid to the interests of victims,
exculpatory evidence obtained from such providers especially by allowing them to take an active part in
as the United Nations or non-governmental the proceedings (Art. 68 (3) Rome Statute). This
organizations (‘NGOs’; The Prosecutor v Thomas provision also lays down that victims’ participation
Lubanga Dyilo [Decision on the Consequences of must not prejudice or be inconsistent with the rights
Non-Disclosure of Exculpatory Materials Covered of the accused and the conduct of a fair and impartial
by Article 54(3)(e) Agreements and the Application trial. Finding a proper balance between these two
to Stay the Prosecution of the Accused, together with interests will be another task for the chambers.
Certain Other Issues Raised at the Status Conference
on 10 June 2008] ICC-01/04-01/06-1401 [13 June 95 Rule 85 RPE defines victims as ‘natural persons
2008]). The chamber subsequently lifted the stay of who have suffered harm as a result of the commission
proceedings only after the prosecution had agreed to of any crime within the jurisdiction of the Court’ and
make the confidential material available to the ICC. ‘organizations or institutions that have sustained
direct harm to any of their property which is
91 The defence, for its part, also has certain dedicated to religion, education, art or science or
disclosure obligations, but in keeping with the right charitable purposes, and to their historic monuments,
not to be forced to incriminate one’s self, it must only hospitals and other places and objects for
disclose material it intends to use at the confirmation humanitarian purposes’. The notion of ‘harm’
hearing or the trial (Rule 78 RPE) and inform the
comprises physical and emotional suffering as well particular of States Parties. This is especially true
as economic loss (see Art. 75 (1) Rome Statute). with regard to the crucial question of the effective
execution of arrest warrants and surrender of
96 According to Pre-Trial Chamber I decision of 17 suspects to The Hague. As foreseen and planned by
January 2006 regarding the situation in the DRC, the founders of the ICC, the court is characterized by
victims have a right to participate in the investigation the structural weakness that it does not have the
phase, ie before any warrants for arrest of individuals competencies and means to enforce its own
have been issued. At this stage, they must show decisions. As already shown with regard to the
sufficient grounds to believe that they have been principle of complementarity, it was also the wish of
harmed. Under Rule 89 (3) RPE, other persons, the ICC’s creators that States’ sovereignty prevails in
notably NGOs, are entitled to make an application for this respect.
participation on behalf of victims with their consent.
101 On the other hand and in order to compensate
97 The ICC may make an order for reparations to be for this structural weakness of the ICC, a detailed
made to the victims by the convicted person (Art. 75 regime of obligations for co-operation has been
(2) Rome Statute). In addition, victims may request introduced into the Rome Statute. No reservations
reparations according to Rules 94 to 99 RPE. The may be made to the Rome Statute (Art. 120 Rome
ASP has established a victims’ trust fund pursuant to Statute; Treaties, Multilateral, Reservations to). The
Art. 79 Rome Statute through which the ICC may co-operation regime is meant to ensure that the ICC
order that awards for reparations be made (Rule 98 can effectively obtain what is necessary to reach the
RPE). persons it is supposed to try. Furthermore, the
expertise and field-presence of international
(iv) Enforcement organizations and NGOs are extremely important for
a successful conduct of the proceedings. This
98 The ICC relies on States with regard to the reaffirms that the ICC depends and relies on co-
enforcement of the sentences. Art. 103 Rome Statute operation and executive means provided by others.
provides that sentences ‘shall be served in a State
designated by the Court from a list of States which (a) Relationship with the United Nations
have indicated to the Court their willingness to
accept sentenced persons’. The first State to sign an 102 The project of the ICC was born and developed
agreement with the ICC on the enforcement of within the UN before becoming an independent
sentences was Austria on 27 October 2005. judicial institution. The two organizations are still
closely interlinked, a relationship defined by the
99 Fines, forfeiture measures, and reparation orders Rome Statute and the Negotiated Relationship
are enforced after a co-operation request of the Agreement between the International Criminal Court
Presidency by the State with which the sentenced and the United Nations (‘Relationship Agreement’)
person or victim ‘appears to have direct connection concluded in conformity with Art. 2 Rome Statute.
by reason of either nationality, domicile or habitual The Preamble of the Rome Statute expresses this
residence or by virtue of the location of [his or her] relationship also by ‘[r]eaffirming the Purposes and
assets and property’ (Rule 217 RPE). Principles of the Charter of the United Nations’ and
by calling for an ‘independent permanent
4. International Co-operation International Criminal Court in relationship with the
United Nations’. It also aims for consistency and
and Judicial Assistance compatibility with the UN Charter, eg with regard to
the exercise of jurisdiction over the crime of
100 According to the Rome Statute, the ICC aggression (Art. 5 (2) Rome Statute). As outlined
generally has no executive powers and no police above (at para. 54), the permanent members of the
force of its own or other executive units. UN Security Council had raised concerns regarding
Consequently, international co-operation with States a potential clash between the Security Council’s
and judicial assistance are vital prerequisites for the power to determine the existence of any act of
functioning of the ICC. The ICC is totally dependent aggression under Art. 39 UN Charter and the ICC’s
on the full, effective, and timely co-operation in exercise of jurisdiction over cases of aggression
which had not been referred to the court by the 105 Finally, other areas of co-operation include
Security Council. However, the fact that France and administrative matters, personnel, services, and
the United Kingdom have abstained from blocking facilities.
the consensus reached in Kampala shows that the
Security Council’s crucial role in safeguarding 106 In addition to the Relationship Agreement, the
international peace and security is not threatened by UN and its Secretary-General have special
extending the trigger mechanisms of the ICC’s responsibilities under the Rome Statute, such as the
jurisdiction beyond the monopoly of the Security deposition and consideration of signatures,
Council. A particularly important aspect of the ratifications, accessions, withdrawals, declarations,
relationship between the ICC and the UN is the and amendments to the Rome Statute (Arts 125–127
power of the Security Council, already referred to Rome Statute) and the convening of review
above in para. 59, to refer situations to the ICC under conferences (Art. 123 Rome Statute; Depositary).
Art. 13 (b) Rome Statute or to defer an investigation
or prosecution under Art. 16 Rome Statute (see para. (b) Co-operation with States Parties
75 above).
107 The States have not agreed to create an
103 Art. 3 Relationship Agreement lays down a executive mechanism with a world-wide mandate for
general duty of close co-operation and consultation, the ICC. Instead, they have agreed to an extensive set
whenever appropriate, on matters of mutual interest. of obligations for States Parties concerning
In more detail, the agreement provides for reciprocal international co-operation, judicial assistance, and
representation in the form of a standing invitation to enforcement contained in Part 9 Rome Statute. To be
the UN Secretary-General (United Nations, able to fulfil the obligations contained in the Rome
Secretary-General) to attend certain hearings of the Statute, a significant number of Member States have
chambers and all public meetings of the ICC, as well adapted their national legislation concerning co-
as the granting of observer status within the UN to operation in criminal justice matters.
the ICC (Art. 4 Relationship Agreement;
International Organizations or Institutions, Observer 108 The main obligation of States Parties is to co-
Status; Observers). Another important aspect is the operate fully with the ICC (Art. 86 Rome Statute).
exchange of information and documents of mutual The ICC is authorized to make a request for co-
interest, especially with regard to documents and operation, which the State must handle confidentially
information that could be of interest for the and, upon request by the ICC, in a manner that
proceedings of the ICC (Art. 5 Relationship protects the safety of victims, potential witnesses,
Agreement). and their families (Art. 87 Rome Statute). States
Parties are obliged to create appropriate national
104 The agreement also sets rules for the procedures for the execution of requests by the ICC
relationship between the UN Security Council and (Art. 88 Rome Statute).
the prosecutor, especially with regard to Security
Council referrals and deferrals and cases of non-co- 109 Another key obligation of States is to arrest and
operation by States subsequent to a Security Council surrender persons found in their territory or to allow
referral (Art. 17 Relationship Agreement). UN co- the transit of persons being surrendered to the ICC
operation with the prosecutor is also envisaged, through their territories (Art. 89 Rome Statute; Safe-
especially in the context of an investigation (Art. 18 Conduct and Safe Passage). Procedures are foreseen
Relationship Agreement). Several rules concern the for dealing with cases of ne bis in idem challenges,
protection of confidential information (eg Arts 18 competing requests, and persons being prosecuted or
(4), 20 Relationship Agreement). Where a suspected having been convicted for crimes not covered by the
person falls under the Convention on the Privileges Rome Statute (Arts 89 (2), (4), 90 Rome Statute).
and Immunities of the UN, the UN shall co-operate Other forms of co-operation, as detailed in Art. 93
to waive any privileges and immunities in Rome Statute, include information on the
accordance with that convention and the relevant identification and whereabouts of persons, the taking
rules of international law. of evidence including testimony, the examination of
places or sites, the temporary transfer of persons in
custody, and the protection of witnesses and victims. operation rule of Art. 86 Rome Statute. However,
Requests may be denied by the State where they when the UN Security Council refers a situation to
would be in conflict with a national ‘existing the ICC pursuant to Art. 13 (b) Rome Statute, it may
fundamental legal principle of general application’ or also, under Chapter VII UN Charter, oblige non-
where the documents or evidence concerned relate to Member States to co-operate with the ICC. In this
its national security (Art. 93 (3), (4) Rome Statute). vein, in Resolution 1593 (2005) referring to the ICC
The execution of requests may also be postponed for the situation in Darfur, Sudan—which is not a State
reason of an ongoing national investigation or Party to the Rome Statute—the Security Council
prosecution or an admissibility challenge pending ‘[d]ecide[d] that the Government of Sudan … shall
before the ICC (Arts 94, 95 Rome Statute). cooperate fully … and provide any necessary
assistance’ (at para. 2). Thus, universal co-operation
110 Given the sensitive nature and potential interest with the ICC may become mandatory in certain
of third parties in these procedures, the Rome Statute situations through decisions of the Security Council
foresees consultation[s] in cases of problems arising under Chapter VII UN Charter.
in the context of a co-operation request from the ICC
(especially Art. 97 Rome Statute). Finally, Art. 98 114 Art. 87 (5) Rome Statute states that non-
Rome Statute provides that where complying with a Member States may also be invited by the ICC to
request for surrender or assistance would require the provide information and assistance on the basis of an
State requested to breach its obligations towards ad hoc or general agreement; if they fail to comply
another State, including the obligation to first obtain with obligations arising thereunder, the ICC may
the consent of that State, the ICC may not proceed inform the Assembly of States Parties or, in case of a
with the request without first obtaining the co- Security Council referral, the Security Council. The
operation of the third State (see also Mutual Legal ICC may also ask international organizations for
Assistance in Criminal Matters). information or documents. In this regard, co-
operation with organizations with special capacities,
111 It was this provision that the US government experience, and technical know-how in the field of
under the Bush administration relied on in its international tracing, police, and justice networking,
Bilateral Non-Surrender Agreements concluded such as Interpol and Europol, may be of particular
between 2002 and 2005 with numerous States, importance.
including States Parties, in order to prevent the
possibility of US personnel being surrendered to the (d) Civil Society
ICC. Since President Obama, as well as members of
his administration have recently stated the intention 115 The role of civil society is not formalized or
of the US re-engage with the ICC and repealed the institutionalized in the Rome Statute. Nevertheless,
decision to refuse aid payments to States unwilling to private individuals and NGOs can be relevant to the
sign the bilateral agreements in question, the activities of the ICC as sources of important
practical and legal relevance of these agreements information, especially in the field, given their often
seems to be diminishing. close contacts with victims and local networks of
human rights defenders. Information coming from
112 In exchange for States’ co-operation with the NGOs and other private sources will be taken into
ICC, the court may also provide assistance to a State account by the OTP at a very early stage when
Party or even a non-Member State which is deciding on whether to begin an investigation. The
conducting an investigation or trial in respect of prosecutor must analyse information provided and
crimes within the jurisdiction of the ICC or other must inform those who has given information on the
serious crimes (Art. 93 (10) Rome Statute). decision not to open an investigation (Art. 15 (2), (6)
Rome Statute). The prosecutor may also, in
(c) Non-Member States and International beginning an investigation, seek additional
Organizations information from NGOs and other reliable sources
pursuant to Art. 15 (2) Rome Statute and 
Rule 104
113 Following the pacta tertiis non nocent principle, (2) RPE.
non-Member States are not bound by the general co-
116 The ICC may even, in exceptional investigations and prosecutions and related working
circumstances, employ the expertise of gratis methods that is as fair and efficient as possible.
personnel offered by NGOs to assist with the work of Without such efficacious working methods and work
any of the organs of the ICC (Art. 44 (4) Rome of the OTP, the ICC cannot function, and there may
Statute). Finally, Rule 103 RPE provides that not be no or too few concrete cases.
only States but also organizations or persons may
make amicus curiae submissions to the ICC 120 Effective criminal co-operation with the ICC is
(International Courts and Tribunals, Amicus Curiae). of vital importance. It is therefore indispensable that
the OTP continues to build up an increasingly solid

D. Current Challenges and reliable network of efficient international co-

operation with States Parties and other actors. This

and Future Perspectives system will ideally be based on mutual respect, trust,
and confidence and the readiness to co-operate with
each other without delay. A similar priority is the
ongoing development and implementation of best
1. General practices of international criminal co-operation: fast,
creative, flexible, and unbureaucratic, with a flow of
117 On 1 July 2002, the date the Rome Statute
information and supportive measures as direct as
entered into force, a so-called ‘ICC Advance Team’,
possible. Special attention must be given to the
composed of the first five members of the staff of the
critical and unresolved question of arrest and
future ICC, entered a completely empty office
surrenders to the ICC, which are a prerequisite of
building in The Hague to start building up the ICC.
ICC trials since Art. 63 Rome Statute requires the
Since then, all the ICC’s organs have been
presence of the accused during the trial.
established and the ICC has grown from a small
embryonic unit in 2002 and 2003 to a new emerging
international organization with a staff of 3. Limitations
approximately 1100 in 2010. Nevertheless, it cannot
be overlooked that there are still many important 121 Beyond this, it should not be overlooked that
challenges to overcome in the foreseeable future. there are also other limitations and constraints which
inevitably reduce the efficiency of the ICC and its
118 One challenge is the ongoing task to turn the chances to work with the same degree of success as
ICC—a new and unique international organization well-established national courts. This concerns both
with many novel and untested features—into a fully factual limitations and difficulties and legal
operational and well-functioning judicial institution. limitations inherent in the Rome Statute.
The ICC must aim to be fully understood, accepted,
and supported by the international community. In 122 The gravest limitation on the factual side is the
this process of internal and external consolidation, enormous difficulty of carrying out investigations
the emphasis will shift more and more from and collecting evidence regarding mass crimes
organizational build-up to intensified investigations committed in situations and regions which, as the
and, finally, criminal trials. It remains essential that examples of Uganda, the DRC, and Darfur show,
the ICC continues to show—through the way it may often be unstable and unsafe. The considerable
conducts all these activities—that it is a purely distance of many situations from the seat of the ICC
judicial, objective, neutral, and non-political creates additional logistical and technical problems.
institution. Another grim reality is the notorious scarcity of
financial and other resources available for
investigations and other work and activities of the
2. Role of the Prosecutor ICC.
119 The prosecutor and the OTP as the driving force
123 With regard to legal limitations and safeguards
or ‘engine’ of the ICC bear a special responsibility
contained in the Rome Statute, commentators have
for the entire ICC. They are called upon to use the
observed that the complementarity regime of the ICC
legal framework of the Rome Statute and the RPE for
is quite strong, if not too strong. On the other hand,
the sustained development of a system of
it has been observed that the regimes of jurisdiction consisting of two levels which complement each
and co-operation as referred to in Parts 2 and 9 Rome other.
Statute are quite weak, if not too weak.
126 The first level is constituted by States and their
124 At the same time, it does not seem wise to try to national criminal law systems. As confirmed by the
alleviate some of these problems through principle of complementarity as the primary basis of
amendments to the Rome Statute under Art. 123 the Rome Statute, States continue to have the primary
Rome Statute. It can be assumed that neither States duty to exercise their criminal jurisdiction over those
Parties nor the ICC itself have had enough time and responsible for international crimes.
experience for a thorough and comprehensive
assessment of the practicability of the Rome Statute. 127 The second level is constituted by the ICC.
In such a situation, it seems all the more necessary to According to the principle of complementarity, the
avoid amendment proposals which might be divisive ICC can only act as a last resort in cases in which
or might create risks for a coherent and uniform national criminal law systems are unwilling or
treaty regime. In this respect, the States Parties have unable genuinely to carry out the investigation or
shown prudence and political wisdom when they prosecution.
decided, in November 2009, to limit the discussion
on amendments at the review conference in May 128 This complex system apparently needs more
2010 in Kampala to three proposals: a possible time to be fully accepted and adhered to by all
revision of 
Art. 124 Rome Statute; the possible concerned in order to develop its full potential. States
adoption of a provision regarding the crime of Parties need to get used to the necessity of direct, full,
aggression; and the inclusion of the use of certain and sustained support for and co-operation with
weapons as war crimes in the context of an armed ‘their’ court. The ICC itself needs full consolidation.
conflict not of an international character. The States It must gradually develop coherent and consistent
Parties have demonstrated determination and unity in jurisprudence. This jurisprudence must set or
their adoption of the package proposal on the crime reaffirm legal standards which are then observed on
of aggression (see paras 53–54 above) and the a world-wide level. This may contribute to more
amendment of Art. 8 Rome Statute in order to international justice.
include, in a non-international armed conflict, the

Select Bibliography
war crime of employing certain poisonous weapons
and expanding bullets, asphyxiating or poisonous
gases, and all analogous liquids, materials, and
devices (Weapons, Prohibited). In adopting these  H Ahlbrecht, Geschichte der
two proposals, the Member States complement the völkerrechtlichen Strafgerichtsbarkeit im 20.
ICC’s jurisdiction over crimes already referred to in Jahrhundert: Unter besonderer
the Rome Statute. On the other hand, the Assembly Berücksichtigung der völkerrechtlichen
decided to retain Art. 124 Rome Statute to Straftatbestände und der Bemühungen um
continuously give new Member States the einen Ständigen Internationalen
opportunity to exclude from the ICC’s jurisdiction Strafgerichtshof (Nomos Baden-Baden
war crimes allegedly committed by its nationals or 1999).
on its territory for a period of seven years. As the ICC  L Condorelli ‘La cour pénale internationale:
is still a relatively young and emerging international Un pas de géant…’ (1999) 103 RGDIP 7–21.
court, stability and continuity of its treaty regime are  F Lattanzi and WA Schabas (eds) Essays on
probably in the well-understood interest of all the Rome Statute of the International
concerned in the international community. Criminal Court (Ripa Fagnano Alto Sirente
1999–2004) vols 1–2.
 RS Lee (ed) The International Criminal
4. Outlook Court: The Making of the Rome Statute
(Kluwer The Hague 1999).
125 In sum, the founders of the ICC have created a
 S Zappalà ‘Il procuratore della Corte penale
new system of international criminal jurisdiction
internazionale: Luci e ombre’ (1999) 82
RivDirInt 39–85.
 RS Lee and H Friman (eds) The International  M Politi and G Nesi (eds) The International
Criminal Court—Elements of Crimes and Criminal Court and the Crime of Aggression
Rules of Procedure and Evidence (Ashgate Aldershot 2004).
(Transnational Ardsley NY 2001).  RS Lee (ed) States’ Responses to Issues
 M Politi and G Nesi (eds) The Rome Statute Arising from the ICC Statute: Constitutional,
of the ICC—A Challenge to Impunity Sovereignty, Judicial Cooperation and
(Ashgate Aldershot 2001). Criminal Law (Transnational Ardsley NY
 K Ambos, Der Allgemeine Teil des 2005).
Völkerstrafrechts: Ansätze einer  H Olásolo, The Triggering Procedure of the
Dogmatisierung (Duncker & Humblot Berlin International Criminal Court (Nijhoff
2002). Leiden 2005).
 MC Bassiouni (ed) The Statute of the  C Stahn, H Olásolo, and K Gibson
International Criminal Court and Related ‘Participation of Victims in Pre-Trial
Instruments: Legislative History 1994–2000 Proceedings of the ICC’ (2006) 4 JICJ 219–
(Transnational Ardsley NY 2002). 38.
 K Dörmann Elements of War Crimes under  C Jordan and M Saracco ‘The raisons d’être
the Rome Statute on the International of the Pre-Trial Chamber of the International
Criminal Court: Sources and Commentary Criminal Court’ in E Decaux From Human
(CUP Cambridge 2002). Rights to International Criminal Law:
 IL Kost, International Criminal Justice— Studies in Honour of an African Jurist, the
Selective Bibliography (Peace Palace Library Late Judge Laity Kama (Brill Leiden 2007)
The Hague 2002). 419–35.
 LN Sadat, The International Criminal Court  K Ambos Internationales Strafrecht:
and the Transformation of International Strafanwendungsrecht, Völkerstrafrecht,
Law: Justice for the New Millennium Europäisches Strafrecht (2nd ed Beck
(Transnational Ardsley NY 2002). München 2008).
 M Benzing ‘The Complementarity Regime of  O Triffterer (ed) Commentary on the Rome
the International Criminal Court: Statute of the International Criminal Court
International Criminal Justice between State (2nd ed Nomos Baden-Baden 2008).
Sovereignty and the Fight against Impunity’  R Dixon K Kahn, and R May (eds) Archbold:
(2003) 7 MaxPlanckUNYB 591–632. International Criminal Courts: Practice,
 AM Danner ‘Enhancing the Legitimacy and Procedure and Evidence (3rd ed Sweet &
Accountability of Prosecutorial Discretion at Maxwell London 2009).
the International Criminal Court’ (2003) 97  H Friman ‘The International Criminal Court
AJIL 510–52. and Participation of Victims’ (2009) 22 LJIL
 A Eser U Sieber, and H Kreicker, Nationale 485–500.
Strafverfolgung völkerrechtlicher  M Happold ‘Child Recruitment as a Crime
Verbrechen/National Prosecution of under the Rome Statute of the International
International Crimes vols 1–6 (Max-Planck Criminal Court’ in J Doria and PI Blišcenko
Institut für ausländisches und internationales The Legal Regime of the International
Strafrecht Freiburg 2003–5). Criminal Court: Essays in Honour of
 E Lambert-Abdelgawad ‘Cour pénale Professor Igor Blishchenko (Nijhoff Leiden
internationale et adaptions constitutionelles 2009) 579–607.
comparés’ (2003) 55 RevIntDroitComp 539–  G Werle Principles of International Criminal
73. Law (2nd ed Asser The Hague 2009).
 D Robinson ‘Serving the Interests of Justice:  S Williams and L Sherif ‘The Arrest Warrant
Amnesties, Truth Commissions and the for President al-Bashir: Immunities of
International Criminal Court’ (2003) 14 EJIL Incumbent Heads of State and the
481–505. International Criminal Court’ (2009) 14
 D McGoldrick, P Rowe, and E Donnelly JC&SL 71–92.
(eds) The Permanent International Criminal
Court (Hart Oxford 2004).
  C Kreß and L von Holtzendorff ‘The  Rome Statute of the International Criminal
Kampala Compromise on the Crime of Court (adopted 17 July 1998, entered into
Aggression’ (2010) 8 JICJ 1179–1217. force 1 July 2002) 2187 UNTS 90.
 WA Schabas The International Criminal  Situation in the Democratic Republic of the
Court: A Commentary on the Rome Statute Congo: Decision on the Applications for
(OUP Oxford 2010). Participation in the Proceedings of VPRS 1,
 C Stahn and L van den Herik Future VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS
Perspectives on International Criminal 6 (International Criminal Court Pre-Trial
Justice (Asser The Hague 2010). Chamber I 17 January 2006) Doc ICC-01/04-
101-tEN-Corr.
 UN ILC ‘Draft Statute for an International
Select Documents Criminal Court’ (1994) GAOR 49th Session
Supp 10, 29.
 Agreement on the Privileges and Immunities  UNSC Res 1422 (2002) (12 July 2002)
of the ICC (9 September 2002) Doc ICC- SCOR [1 January 2001–31 July 2002] 316.
ASP/1/3.  UNSC Res 1487 (2003) (12 June 2003)
 Charter of the [Nuremberg] International SCOR [1 August 2002–31 July 2003] 202.
Military Tribunal (8 August 1945) 82 UNTS  UNSC Res 1593 (2005) (31 March 2005)
284. SCOR [1 August 2004–31 July 2005] 131.
 Code of Judicial Ethics (9 March 2005) Doc
ICC-BD/02-01-05.
 Code of Professional Conduct for Counsel (2
December 2005) Doc ICC-ASP/4/3/Res.1.
 Convention on the Prevention and
Punishment of the Crime of Genocide
(adopted 9 December 1948, entered into
ARTICLE II

force 12 January 1951) 78 UNTS 277.
Convention on the Privileges and Immunities
International law; how it
of the United Nations (adopted 13 February
1946, entered into force 17 September 1946)
becomes part of

1 UNTS 15.
Elements of Crimes (9 September 2002) Doc
domestic law.
ICC-ASP/1/3 
(Pt. II-B).
 Financial Regulations and Rules (10 Public International Law
September 2002) Doc ICC-ASP/1/3.
 International Criminal Court Assembly of
States Parties ‘Rules of Procedure and Twitter
Evidence’ (9 September 2002) Official
Records ICC-ASP/1/3.
 International Criminal Court Review
Conference Res RC/Res.6 (11 June 2010).
 Negotiated Relationship Agreement between
the International Criminal Court and the
United Nations (4 October 2004) Doc ICC-
ASP/3/Res.1.
 Office of the Prosecutor ‘Paper on some
Policy Issues before the Office of the
Prosecutor’ (September 2003).
 Regulations of the Court (26 May 2004) Doc
ICC-BD/01-01-04 (as revised on 9 March
2005) Doc ICC-BD/01-01-04/Rev.01-05.
International Court of The fifteen permanent judges are elected from a list
of persons nominated by the national groups in the

Justice Permanent Court of Arbitration. The election process

is set out in Articles 4-12 of the ICJ statute Generally,
five members of the Security Council of the United
From Wikipedia, the free encyclopedia Nations always have a judge from their country.
These countries are China, France, Russia, United
The International Court of Justice (French La Kingdom, and the United States of America.
Cour internationale de justice (CIJ), is an
international organization. It is the main judicial In some case, the ICJ allows Ad hoc judges. Thus,
organ or branch of the United Nations. In short, the countries in dispute have a right to nominate one
International Court of Justice is ICJ; sometimes judge each for that particular case, if desired. This
people call it the World Court. In French language, right is not available if that country already has a
it is Cour internationale de justice. Established ICJ judge of its nationality in the ICJ. Thus, sometimes,
in 1945, ICJ has its headquarters at The Hague, instead of fifteen, seventeen judges may be deciding
Netherlands. The ICJ began its working from 1946. a case.
It replaced an earlier similar court named Permanent
Court of International Justice. The International There are many rules, which lay down the
Court of Justice is different from the International qualifications and conduct of the judges of the ICJ.
Criminal Court. The ICJ uses two languages, the
English language and the French language. Procedure
The Internal Court of Justice has two major
Generally, all the judges of the ICJ sit together to
functions. Firstly, it settles disputes, which the
hear and decide any matter. However, sometimes
member countries may bring before it. Secondly, it
smaller chambers of three to five judges hear and
may give its opinions on legal matters. Since 1980s,
decide a case. Such chambers may be for special
many developing countries have been using the
types of cases. Sometimes, the ICJ sets up ad hoc
services of the ICJ. But, in 1986, the United States of
chambers to hear and decide particular disputes.
America did not accept the court’s views on all
matters, but rather selectively, on a case-to-case
While deciding the case, the ICJ applies the
basis. Since the year 2000 the docket went down
principles of international law. It also uses the laws
from 23 to 12 cases. In the meantime the staff tripled.
of the civilized world. This may be the civil and
criminal law of major countries. It may also refer to
Contents legal writings, law books, and earlier decisions while
deciding any matter.
 1 Structure
 2 Procedure
 3 Further reading
 4 Other websites
Who are the ICJ & ICC
Structure Background
The ICJ has fifteen permanent judges. The UN The ICJ (International Court of Justice) and the ICC
General Assembly and the UN Security Council (International Criminal Court), here as icj-icc.org,
elects the judges. A judge serves for a nine year are about the re-ratifying, re-vamping and re-
period and may be re-elected if necessary. If a establishing the original courts’ houses, as it were in
serving judge dies, another judge, from the same 1811 AD, before its demise began in 1877. Under our
country he or she belonged to is generally elected to new Services Charters for the icjglobal, icj-icc, icj-
fill the vacant position. Elections are staggered, thus cij and ipcc-icc (intracourts system) and interlinked
five judges (one-third of the Court) come up for networked Supreme Court and High Courts
election every three years.
Tribunals we are set to correct, restore and bring The Present
balance to all banking systems (private and public,
including on-ledger and off-ledger journals) through The time has once again arrived for the original 1811
processes of Accounting, Auditing and Redemption banking and intracourts system to be re-established,
within our Settlors Offices. albeit upgraded with the most current and advanced
computers, banking and accounting systems. We,
The aperture planned covert rampant and stealing of Senior Judges of the ICJ/ICC/IPCC Conglomerate,
the Royal Court files, ancestral assets and cash funds who represent the original 1811 systems, are
data, which eventually led to the gruesome tragic presently involved in a re-distribution process of
World War I (WW1) and World War II (WW2). Historical Assets and Accounts for the betterment of
After the World War I (WW1), and after the humanity. We have sanctioned and authorised the
troublesome QINGHAI REVOLUTION in what is Universal Digital Currency Reserve Foundation
now the Mainland China, the remediation of the (UDCRF) as part of the new Digital Reserve for
original KING SOLOMON 1867 PERSIA global and intergalactic currencies. Other main
TREASURE BANK BONDED ACCOUNTING objectives include the signing off on global projects
AND AUDITING SYSTEM and its original in the areas of provisions of food, water, energy and
contributing parties took place. And, there was also shelter for all peoples.
the creation and establishment of THE LEAGUE OF
NATIONS on this Planet Earth in 1919. The Future
The Permanent Court of International Justice (PCIJ) The Future of the ICJ/ICC/IPCC Conglomerate is in
which ensured Bilateral Ties were maintained for a World where there is a Paradigm Shift in peoples’
continuation of all 1871 AD Treaties which had awareness of all things positive, where Justice is truly
temporarily stopped operations in 1917 AD at the very real as the ICJ continues to fight corruption in
height of the WORLD WAR I (WW1) in order to the system and the people start to believe in a positive
assure its paperwork in service for the original future for Humanity. A future World where major
LEAGUE OF NATIONS (LoN), under its original projects begin to change the landscape of the planet,
Charter for Service was re-started in 1922. During and more people start to benefit from the
this time, the original 1811 AD established Apex redistribution of wealth from the 1% to the 99%
Court IPCC ICJ-GLOBAL SYSTEM, THE making for a more equitable World. More criminal
PERMANENT COURT OF INTERNATIONAL bankers, politicians and war criminals will be
JUSTICE (PCIJ), THE INTERNATIONAL brought to justice making countries and their people
CRIMINAL COURT (ICC) and THE regain faith in their Law and Legal Systems. We
INTERNATIONAL COURT OF JUSTICE (ICJ), encourage more Humanitarian entities supported by
the Tripartite Treaties Bipartisan WORLD BANK the ICJ, to begin to have a positive effect on global
DEVELOPMENT GROUP (WBDG) and the matters such as food, energy and water as well as
UNITED NATIONS SYSTEM (UNS) continued its property and shelter for the poverty stricken areas of
operations up until 1941 AD and during the height of the Earth. The ICJ and ICC will stand resolute to
the WORLD WAR II (WW2), all these operations protect people and their Nations to make sure that
were stopped, temporarily. Humanity do not just survive but thrive.

Therefore, after the WORLD WAR II (WW2), the

UNIPLEX FORTIS GRAVIOLIS 36-FORT
KNOXS ably supported UNITED NATIONS (UN)
was RE-STARTED which eventually amalgamated
and replaced the original senatorial managed
LEAGUE OF NATIONS (LoN) with the aim of
ending wars among nations thereby re-establishing a
mechanism for maintaining foreign affairs for the
nations.
ARTICLE II
incorporation clause of the Constitution, form
part of the laws of the land even if they do not
derive from treaty obligations. The classical
formulation in international law sees those
customary rules accepted as binding result
from the combination of two elements: the
established, widespread, and consistent
practice on the part of States; and a
Q— How may international law become a part psychological element known as the opinion
of domestic law? Explain. juris sive necessitates (opinion as to law or
necessity). Implicit in the latter element is a
belief that the practice in question is
rendered obligatory by the existence of a rule
ANS: Under the 1987 Constitution, international law of law requiring it. (Mijares v. Ranada, G.R.
can become part of the sphere of domestic No. 139325, April 12, 2005, 455 SCRA 397).
law either by transformation or incorporation.
The transformation method requires that an
international law be transformed into a
domestic law through a constitutional Q— State the concept of the term “generally
mechanism such as local legislation. The accepted principles of international law”
incorporation method applies when, by mere and give examples.
constitutional declaration, international law is
deemed to have the force of domestic law.

ANS: “Generally accepted principles of

international law” refers to norms of general
Treaties become part of the law of the land or customary international law which are
through transformation pursuant to Article binding on all states, i.e., renunciation of war
VII, Section 21 of the Constitution which as an instrument of national policy, the
provides that “no treaty or international principle of sovereign immunity, a person’s
agreement shall be valid and effective unless right to life, liberty and due process, and
concurred in by at least two-thirds of all the pacta sunt servanda, among others. The
members of the Senate.” Thus, treaties or concept of “generally accepted principles of
conventional international law must go law” has also been depicted in this wise:
through a process prescribed by the
Constitution for it to be transformed into
municipal law that can be applied to domestic
conflicts. (Pharmaceutical & Health Care Some legal scholars
Assn. of the Phil. v. Health Secretary Duque, and judges upon certain
et al., G.R. No. 173034, October 19, 2007). “general principles of law” as
a primary source of
international law because
they have the “character of jus
Q — May generally accepted principles of rationale” and are “valid
international law form part of the law of through all kinds of human
the land even if they do not derive from societies.” (Judge Tanaka in
treaty obligations? Explain. his dissenting opinion in the
1966 South West Africa Case,
1966, I.C.J. 296). O’Conell
holds that certain principles
ANS: Yes. Generally accepted principles of are part of international law
international law, by virtue of the because they are “basic to
 legal systems generally” and Duration therefore is not the most important
hence part of the jus gentium. element. More important is the consistency
These principles, he believes, and the generality of the practice.
are established by a process
of reasoning based on the
common identity of all legal
systems. If there should be Once the existence of state practice has
doubt or disagreement, one been established it becomes necessary to
must look to state practice determine why states behave the way they
and determine whether the do. Do states behave the way they do
municipal law principle because they consider it obligatory to behave
provides a just and thus or do they do it only as a matter of
acceptable solution. courtesy? Opinio juris or the belief that a
(Pharmaceutical & Health certain form of behavior is obligatory, is what
Care Assn. of the Phil. v. Sec. makes practice an international rule. Without
of Health Duque, et al., G.R. it, practice is not law. (Pharmaceutical &
No. 173034, October 9, Health Care Assn. of the Phil. v. Health
2007). Secretary Duque, et al., G. R. No. 173034,
October 9, 2007).

Q — What is customary international law?

Explain.
Q— What is a soft law? Is it an international
law? Explain.

ANS: Custom or customary international law

means “a general and consistent practice of
ANS: Soft law is an expression of non-binding
states followed by them from a sense of legal
norms, principles and practices that influence
obligation (opinion juris)”. This statement
state behavior. (David Fidler, Development
contains the two basic elements of custom:
Involving SARS, International Law &
the material factor, that is, how states
Infections Disease Control at the Fifty-Six
behave, and the psychological or subjective
Meeting of the World Health Assembly, June
factor, that is, why they behave the way they
2003, ASIL; Pharmaceutical & Health Care
do.
Assn. of the Phils. v. Health Secretary
Duque, et al., G.R. No. 173034, October 9,
2007). It does not fall under the international
law set forth in Article 38, Chapter III of the
The initial factor for determining the
1946 Statute of the International Court of
existence of custom is the actual behavior of
Justice.
states. This includes several elements:
duration, consistency, and generality of the
practice of states.
Q— Give examples of soft law.

The required duration can be either short or

long.
ANS: Certain declarations and resolutions of the
UN General Assembly fall under this
category. (Louis Henkins, et al., International
Law, Cases and Materials, 2nd Ed.). The UN
Declaration of Human Rights is an example.
 This was applied in Government of effect to both; if inconsistent, the later in date will
Hongkong Special Administrative Region v. control, provided that the treaty stipulation is
Olalia; Mejoff v. Director of Prisons; 90 Phil. self- executing. But the rule applies in domestic
70 (1951); Mijares v. Ranada; Shangri-la sphere. A treaty, even if contrary to a later statute, is
International Hotel Management Ltd. v. binding in international law.
Developers Group of Companies Inc., G.R.
No. 159938, March 31, 2006, 486 SCRA
405).

It is resorted to in order to reflect and respond

to the changing needs and demands of
constituents of certain international
organizations like the WHO.

Rules on a Conflict
Between a Treaty and a
Law
Public International Law

Twitter

It depends which court is deciding:

1. International Court- will uphold treaty obligation

in general.

2. Domestic Court- will uphold local laws.

Specific Situatiions of Conflict:

1. Treaty vs. Constitution- A46, VCLT, when

constitutional violation is manifest and concerns a
rule of internal law of fundamental importance, state
may deviate from treaty obligation. (Note: "A party
may not invoke the provisions of internal law as
justification for its failure to perform a treaty."
Under the dualist theory, unconstitutionality of a
treaty is purely domestic matter. State faces risk of
international sanction.)

2. Treaty vs. Domestic legislation- when the two

instruments relate to the same subject, try to give
Law of war Logistics[show]

Related[show]
From Wikipedia, the free encyclopedia

"Jus in Bello" redirects here. For the Supernatural Lists[show]

episode, see Jus in Bello (Supernatural).

This article relies too much on references to  v

primary sources. Please improve this by  t
adding secondary or tertiary sources. (July  e
2017) (Learn how and when to remove this
template message)

The law of war is a legal term of art which refers to

the aspect of public international law concerning
acceptable justifications to engage in war (jus ad
bellum) and the limits to acceptable wartime conduct
(jus in bello or international humanitarian law).

Among other issues, modern laws of war address

declarations of war, acceptance of surrender and the
treatment of prisoners of war; military necessity,
along with distinction and proportionality; and the
The First Geneva Convention governing the sick and prohibition of certain weapons that may cause
wounded members of armed forces was signed in 1864. unnecessary suffering.[1]

Part of a series on The law of war is considered distinct from other

bodies of law—such as the domestic law of a
War particular belligerent to a conflict—which may
provide additional legal limits to the conduct or
justification of war.
History[show]

Battlespace[show]
Contents
 1 Early sources and history
Weapons[show]  2 Modern sources
 3 Purposes of the laws
Tactics[show]  4 Principles of the laws of war
 5 Example substantive laws of war
Operational[show] o 5.1 Declaration of war
o 5.2 Lawful conduct of belligerent actors
o 5.3 Persons parachuting from an aircraft
Strategy[show] in distress
o 5.4 Red Cross, Red Crescent, Magen
Grand strategy[show] David Adom, and the white flag
 6 Applicability to states and individuals
Organization[show]  7 Remedies for violations
 8 International treaties on the laws of war
 9 See also
Personnel[show]
 10 Notes
 11 References
  12 Further reading Similarly, Deuteronomy 21:10–14 requires that
 13 External links female captives who were forced to marry the victors
of a war could not be sold as slaves.[4]
Early sources and history In the early 7th century, the first Caliph, Abu Bakr,
whilst instructing his Muslim army, laid down the
Attempts to define and regulate the conduct of
following rules concerning warfare:
individuals, nations, and other agents in war and to
mitigate the worst effects of war have a long history.
Stop, O people, that I may give you ten rules for your
The earliest known instances are found in the
guidance in the battlefield. Do not commit treachery
Mahabharata and the Old Testament (Torah).
or deviate from the right path. You must not mutilate
dead bodies. Neither kill a child, nor a woman, nor
In the Indian subcontinent, the Mahabharata
an aged man. Bring no harm to the trees, nor burn
describes a discussion between ruling brothers
them with fire, especially those which are fruitful.
concerning what constitutes acceptable behavior on
Slay not any of the enemy's flock, save for your food.
a battlefield, an early example of the rule of
You are likely to pass by people who have devoted
proportionality:
their lives to monastic services; leave them alone.[5][6]
One should not attack chariots with cavalry; chariot
Furthermore, Sura Al-Baqara 2:190–193 of the
warriors should attack chariots. One should not assail
Quran requires that in combat Muslims are only
someone in distress, neither to scare him nor to defeat
allowed to strike back in self-defense against those
him ... War should be waged for the sake of conquest;
who strike against them, but, on the other hand, once
one should not be enraged toward an enemy who is
the enemies cease to attack, Muslims are then
not trying to kill him.
commanded to stop attacking.
An example from the Deuteronomy 20:19–20 limits
In the history of the early Christian church, many
the amount of acceptable collateral and
Christian writers considered that Christians could not
environmental damage:
be soldiers or fight wars. Augustine of Hippo
19 contradicted this and wrote about 'just war' doctrine,
When you besiege a city for a long time, making
in which he explained the circumstances when war
war against it in order to take it, you shall not destroy
could or could not be morally justified.
its trees by wielding an axe against them. You may
eat from them, but you shall not cut them down. Are
In 697, Adomnan of Iona gathered Kings and church
the trees in the field human, that they should be
leaders from around Ireland and Scotland to Birr,
besieged by you? 20Only the trees that you know are
where he gave them the 'Law of the Innocents' which
not trees for food you may destroy and cut down, that
banned killing of women and children in war, as well
you may build siegeworks against the city that makes
as banning the destruction of churches.[7]
war with you, until it falls.[2]
In medieval Europe, the Roman Catholic Church also
Also, Deuteronomy 20:10–12, requires the Israelites
began promulgating teachings on just war, reflected
to make an offer of peace to the opposing party
to some extent in movements such as the Peace and
before laying siege to their city.
Truce of God. The impulse to restrict the extent of
10 warfare, and especially protect the lives and property
When you draw near to a city to fight against it,
of non-combatants continued with Hugo Grotius and
offer terms of peace to it. 11And if it responds to you
his attempts to write laws of war.
peaceably and it opens to you, then all the people
who are found in it shall do forced labor for you and
One of the grievances enumerated in the American
shall serve you. 12 But if it makes no peace with you,
Declaration of Independence was that King George
but makes war against you, then you shall besiege
III "has endeavoured to bring on the inhabitants of
it.[3]
our frontiers the merciless Indian Savages whose
known rule of warfare is an undistinguished
destruction of all ages, sexes and conditions".
Modern sources Humanitarian Law.[8] The Treaty of Guadalupe
Hidalgo, signed and ratified by the United States and
Mexico in 1848, articulates rules for any future wars,
See also: Sources of international law
including protection of civilians and treatment of
prisoners of war.[9] The Lieber Code, promulgated by
the Union during the American Civil War, was
critical in the development of the laws of land
warfare.[10] Historian Geoffrey Best called the period
from 1856 to 1909 the law of war’s "epoch of highest
repute."[11] The defining aspect of this period was the
establishment, by states, of a positive legal or
The signing of the First Geneva Convention by some of legislative foundation (i.e., written) superseding a
the major European powers in 1864. regime based primarily on religion, chivalry, and
customs.[12] It is during this "modern" era that the
The modern law of war is made up from three international conference became the forum for
principal sources:[1] debate and agreement between states and the
"multilateral treaty" served as the positive
 Lawmaking treaties (or conventions) — see § mechanism for codification.
International treaties on the laws of war below.
 Custom. Not all the law of war derives from or In addition, the Nuremberg War Trial judgment on
has been incorporated in such treaties, which "The Law Relating to War Crimes and Crimes
can refer to the continuing importance of Against Humanity"[13] held, under the guidelines
customary law as articulated by the Martens Nuremberg Principles, that treaties like the Hague
Clause. Such customary international law is Convention of 1907, having been widely accepted by
established by the general practice of nations "all civilised nations" for about half a century, were
together with their acceptance that such by then part of the customary laws of war and
practice is required by law. binding on all parties whether the party was a
 General Principles. "Certain fundamental signatory to the specific treaty or not.
principles provide basic guidance. For instance,
the principles of distinction, proportionality, and Interpretations of international humanitarian law
necessity, all of which are part of customary change over time and this also affects the laws of
international law, always apply to the use of war. For example, Carla Del Ponte, the chief
armed force".[1] prosecutor for the International Criminal Tribunal for
the former Yugoslavia pointed out in 2001 that
Positive international humanitarian law consists of although there is no specific treaty ban on the use of
treaties (international agreements) which directly depleted uranium projectiles, there is a developing
affect the laws of war by binding consenting nations scientific debate and concern expressed regarding the
and achieving widespread consent. effect of the use of such projectiles and it is possible
that, in future, there may be a consensus view in
The opposite of positive laws of war is customary international legal circles that use of such projectiles
laws of war,[1] many of which were explored at the violates general principles of the law applicable to
Nuremberg War Trials. These laws define both the use of weapons in armed conflict.[14] This is because
permissive rights of states as well as prohibitions on in the future it may be the consensus view that
their conduct when dealing with irregular forces and depleted uranium projectiles breach one or more of
non-signatories. the following treaties: The Universal Declaration of
Human Rights; the Charter of the United Nations; the
The Treaty of Armistice and Regularization of War Genocide Convention; the United Nations
signed in the Venezuelan city of Trujillo in Convention Against Torture; the Geneva
November 25 and 26 1820 between the president of Conventions including Protocol I; the Convention on
the Republic of Colombia, Simon Bolivar and the Conventional Weapons of 1980; the Chemical
Chief of the Military Forces of the Spanish Kingdom, Weapons Convention; and the Convention on the
Pablo Morillo, is the precursor of the International Physical Protection of Nuclear Material.[15]
Purposes of the laws
It has often been commented that creating laws for
something as inherently lawless as war seems like a
lesson in absurdity. But based on the adherence to
what amounted to customary international law by
warring parties through the ages, it was felt[by whom?]
that codifying laws of war would be beneficial.[citation
needed]

Some of the central principles underlying laws of war

are:[citation needed]

 Wars should be limited to achieving the political

goals that started the war (e.g., territorial
control) and should not include unnecessary
destruction.
 Wars should be brought to an end as quickly as
possible. 1904 article outlining the basic principles of the law of
 People and property that do not contribute to war, as published in the Tacoma Times.
the war effort should be protected against
unnecessary destruction and hardship. Military necessity, along with distinction, and
proportionality, are three important principles of
To this end, laws of war are intended to mitigate the international humanitarian law governing the legal
hardships of war by: use of force in an armed conflict.

 Protecting both combatants and non- Military necessity is governed by several constraints:
combatants from unnecessary suffering. an attack or action must be intended to help in the
 Safeguarding certain fundamental human rights defeat of the enemy; it must be an attack on a
of persons who fall into the hands of the enemy, legitimate military objective,[16] and the harm caused
particularly prisoners of war, the wounded and to civilians or civilian property must be proportional
sick, and civilians. and not excessive in relation to the concrete and
 Facilitating the restoration of peace. direct military advantage anticipated.[17]

Principles of the laws of war Distinction is a principle under international

humanitarian law governing the legal use of force in
an armed conflict, whereby belligerents must
distinguish between combatants and civilians.[a][18]

Proportionality is a principle under international

humanitarian law governing the legal use of force in
an armed conflict, whereby belligerents must make
sure that the harm caused to civilians or civilian
property is not excessive in relation to the concrete
and direct military advantage expected by an attack
on a legitimate military objective.[17]

Example substantive laws of war

To fulfill the purposes noted above, the laws of war
place substantive limits on the lawful exercise of a
belligerent’s power. Generally speaking, the laws Persons parachuting from an aircraft in
require that belligerents refrain from employing distress
violence that is not reasonably necessary for military
purposes and that belligerents conduct hostilities Modern laws of war, specifically within Protocol I
with regard for the principles of humanity and additional to the 1949 Geneva Conventions,
chivalry. prohibits attacking persons parachuting from an
aircraft in distress regardless of what territory they
However, because the laws of war are based on are over. Once they land in territory controlled by the
consensus, the content and interpretation of such enemy, they must be given an opportunity to
laws are extensive, contested, and ever-changing.[19] surrender before being attacked unless it is apparent
The following are particular examples of some of the that they are engaging in a hostile act or attempting
substance of the laws of war, as those laws are to escape. This prohibition does not apply to the
interpreted today. dropping of airborne troops, special forces,
commandos, spies, saboteurs, liaison officers, and
Declaration of war intelligence agents. Thus, such personnel descending
by parachutes are legitimate targets and, therefore,
Main article: Declaration of war may be attacked, even if their aircraft is in distress.

Section III of the Hague Convention of 1907 required Red Cross, Red Crescent, Magen David
hostilities to be preceded by a reasoned declaration Adom, and the white flag
of war or by an ultimatum with a conditional
declaration of war.

Some treaties, notably the United Nations Charter

(1945) Article 2, and other articles in the Charter,
seek to curtail the right of member states to declare
war; as does the older Kellogg–Briand Pact of 1928
for those nations who ratified it.[citation needed]

Lawful conduct of belligerent actors

Modern laws of war regarding conduct during war

(jus in bello), such as the 1949 Geneva Conventions,
provide that it is unlawful for belligerents to engage
in combat without meeting certain requirements,
such as wearing distinctive uniform or other
distinctive signs visible at a distance, carrying The emblem of the International Committee of the Red
weapons openly, and conducting operations in Cross (French: Comité international de la croix-rouge).
accordance with the laws and customs of war.
Impersonating enemy combatants by wearing the Modern laws of war, such as the 1949 Geneva
enemy’s uniform is allowed, though fighting in that Conventions, also include prohibitions on attacking
uniform is unlawful perfidy, as is the taking of doctors, ambulances or hospital ships displaying a
hostages. Red Cross, a Red Crescent, Magen David Adom, The
Red Crystal, or other emblem related to the
Combatants also must be commanded by a International Red Cross and Red Crescent
responsible officer. That is, a commander can be held Movement. It is also prohibited to fire at a person or
liable in a court of law for the improper actions of his vehicle bearing a white flag, since that indicates an
or her subordinates. There is an exception to this if intent to surrender or a desire to communicate.[citation
needed]
the war came on so suddenly that there was no time
to organize a resistance, e.g. as a result of a foreign
occupation.[citation needed]
In either case, persons protected by the Red breaches" of the laws of war. (Third Geneva
Cross/Crescent/Star or white flag are expected to Convention, Article 129 and Article 130.)
maintain neutrality, and may not engage in warlike
acts. In fact, engaging in war activities under a Combatants who break specific provisions of the
protected symbol is itself a violation of the laws of laws of war are termed unlawful combatants.
war known as perfidy. Failure to follow these Unlawful combatants who have been captured may
requirements can result in the loss of protected status lose the status and protections that would otherwise
and make the individual violating the requirements a be afforded to them as prisoners of war, but only after
lawful target.[citation needed] a "competent tribunal" has determined that they are
not eligible for POW status (e.g., Third Geneva
Applicability to states and Convention, Article 5.) At that point, an unlawful
combatant may be interrogated, tried, imprisoned,
individuals and even executed for their violation of the laws of
war pursuant to the domestic law of their captor, but
The law of war is binding not only upon States as they are still entitled to certain additional protections,
such but also upon individuals and, in particular, the including that they be "treated with humanity and, in
members of their armed forces. Parties are bound by case of trial, shall not be deprived of the rights of fair
the laws of war to the extent that such compliance and regular trial." (Fourth Geneva Convention
does not interfere with achieving legitimate military Article 5.)
goals. For example, they are obliged to make every
effort to avoid damaging people and property not For example, in 1976, foreign soldiers fighting for
involved in combat or the war effort, but they are not the National Liberation Front of Angola (FNLA)
guilty of a war crime if a bomb mistakenly or were captured by the People's Movement for the
incidentally hits a residential area. Liberation of Angola (MPLA) during the Angolan
Civil War in 1975. In the Luanda Trial, after "a
By the same token, combatants that intentionally use regularly constituted court" found them guilty of
protected people or property as human shields or being unlawful mercenaries, three Britons and an
camouflage are guilty of violations of the laws of war American were shot by a firing squad on July 10,
and are responsible for damage to those that should 1976. Nine others were imprisoned for terms of 16 to
be protected. The use of contracted combatants in 30 years.
warfare has been an especially tricky situation for the
laws of war. Some scholars claim that private International treaties on the laws
security contractors appear so similar to state forces
that it is unclear if acts of war are taking place by of war
private or public agents.[20] International law has yet
to come to a consensus on this issue. See also: List of international declarations

Remedies for violations List of declarations, conventions, treaties, and

judgments on the laws of war:[21][22][23]
During conflict, punishment for violating the laws of
 1856 Paris Declaration Respecting Maritime Law
war may consist of a specific, deliberate and limited
abolished privateering.
violation of the laws of war in reprisal.
 1864 Geneva Convention for the Amelioration of
the Condition of the Wounded and Sick in Armed
After a conflict has ended, persons who have Forces in the Field.[24]
committed or ordered any breach of the laws of war,  1868 St. Petersburg Declaration Renouncing the
especially atrocities, may be held individually Use of Explosive projectiles Under 400 grams
accountable for war crimes through process of law. Weight.
Also, nations which signed the Geneva Conventions  1874 Project of an International Declaration
are required to search for, then try and punish, concerning the Laws and Customs of War
anyone who has committed or ordered certain "grave (Brussels Declaration).[25] Signed in Brussels 27
August. This agreement never entered into
 force, but formed part of the basis for the o XI – Certain Restrictions with Regard to
codification of the laws of war at the 1899 Hague the Exercise of the Right of Capture in
Peace Conference.[26][27] Naval War
 1880 Manual of the Laws and Customs of War at o XII – The Creation of an International
Oxford. At its session in Geneva in 1874 the Prize Court [Not Ratified]*
Institute of International Law appointed a o XIII – The Rights and Duties of Neutral
committee to study the Brussels Declaration of Powers in Naval War
the same year and to submit to the Institute its o Declaration I – extending Declaration II
opinion and supplementary proposals on the from the 1899 Conference to other types
subject. The work of the Institute led to the of aircraft
adoption of the Manual in 1880 and it went on o Declaration II – on the obligatory
to form part of the basis for the codification of arbitration
the laws of war at the 1899 Hague Peace  1909 London Declaration concerning the Laws of
Conference.[27] Naval War largely reiterated existing law,
 1899 Hague Conventions consisted of three main although it showed greater regard to the rights
sections and three additional declarations: of neutral entities. Never went into effect.
o I – Pacific Settlement of International  1922 The Washington Naval Treaty, also known
Disputes as the Five-Power Treaty (6 February).
o II – Laws and Customs of War on Land  1923 Hague Draft Rules of Aerial Warfare. Never
o III – Adaptation to Maritime Warfare of adopted in a legally binding form.[28]
Principles of Geneva Convention of 1864  1925 Geneva protocol for the Prohibition of the
o Declaration I – On the Launching of Use in War of Asphyxiating, Poisonous or Other
Projectiles and Explosives from Balloons Gases, and of Bacteriological Methods of
o Declaration II – On the Use of Projectiles Warfare.[29]
the Object of Which is the Diffusion of  1927–1930 Greco-German arbitration tribunal.
Asphyxiating or Deleterious Gases  1928 Kellogg-Briand Pact (also known as the Pact
o Declaration III – On the Use of Bullets of Paris).
Which Expand or Flatten Easily in the  1929 Geneva Convention, Relative to the
Human Body treatment of prisoners of war.
 1907 Hague Conventions had thirteen sections,  1929 Geneva Convention on the amelioration of
of which twelve were ratified and entered into the condition of the wounded and sick.
force, and two declarations:  1930 Treaty for the Limitation and Reduction of
o I – The Pacific Settlement of Naval Armament (22 April).
International Disputes  1935 Roerich Pact.
o II – The Limitation of Employment of  1936 Second London Naval Treaty (25 March).
Force for Recovery of Contract Debts  1938 Amsterdam Draft Convention for the
o III – The Opening of Hostilities Protection of Civilian Populations Against New
o IV – The Laws and Customs of War on Engines of War. This convention was never
Land ratified.[30]
o V – The Rights and Duties of Neutral  1938 League of Nations declaration for the
Powers and Persons in Case of War on "Protection of Civilian Populations Against
Land Bombing From the Air in Case of War."[31]
o VI – The Status of Enemy Merchant Ships  1945 United Nations Charter (entered into force
at the Outbreak of Hostilities on October 24, 1945).
o VII – The Conversion of Merchant Ships  1946 Judgment of the International Military
into War-ships Tribunal at Nuremberg.
o VIII – The Laying of Automatic Submarine  1947 Nuremberg Principles formulated under
Contact Mines UN General Assembly Resolution 177 21
o IX – Bombardment by Naval Forces in November 1947.
Time of War  1948 United Nations Convention on the
o X – Adaptation to Maritime War of the Prevention and Punishment of the Crime of
Principles of the Geneva Convention Genocide.
 1949 Geneva Convention I for the Amelioration o Protocol on Explosive Remnants of War
of the Condition of the Wounded and Sick in (Protocol V to the 1980 Convention), 28
Armed Forces in the Field. November 2003, entered into force on
 1949 Geneva Convention II for the Amelioration 12 November 2006.[32]
of the Condition of Wounded, Sick and  1994 San Remo Manual on International Law
Shipwrecked Members of Armed Forces at Sea. Applicable to Armed Conflicts at Sea.[33]
 1949 Geneva Convention III Relative to the  1994 ICRC/UNGA Guidelines for Military
Treatment of Prisoners of War. Manuals and Instructions on the Protection of
 1949 Geneva Convention IV Relative to the the Environment in Time of Armed Conflict.[34]
Protection of Civilian Persons in Time of War.  1994 UN Convention on the Safety of United
 1954 Hague Convention for the Protection of Nations and Associated Personnel.[35]
Cultural Property in the Event of Armed Conflict.  1996 The International Court of Justice advisory
 1971 Zagreb Resolution of the Institute of opinion on the Legality of the Threat or Use of
International Law on Conditions of Application of Nuclear Weapons.
Humanitarian Rules of Armed Conflict to  1997 Ottawa Treaty - Convention on the
Hostilities in which the United Nations Forces Prohibition of the Use, Stockpiling, Production
May be Engaged. and Transfer of Anti-Personnel Mines and on
 1974 United Nations Declaration on the their Destruction.
Protection of Women and Children in Emergency  1998 Rome Statute of the International Criminal
and Armed Conflict. Court (entered into force 1 July 2002).
 1977 United Nations Convention on the  2000 Optional Protocol on the Involvement of
Prohibition of Military or Any Other Hostile Use Children in Armed Conflict (entered into force 12
of Environmental Modification Techniques. February 2002).
 1977 Geneva Protocol I Additional to the Geneva  2005 Geneva Protocol III Additional to the
Conventions of 12 August 1949, and Relating to Geneva Conventions of 12 August 1949, and
the Protection of Victims of International Armed Relating to the Adoption of an Additional
Conflicts. Distinctive Emblem.
 1977 Geneva Protocol II Additional to the  2008 Convention on Cluster Munitions (entered
Geneva Conventions of 12 August 1949, and into force 1 August 2010).
Relating to the Protection of Victims of Non-
International Armed Conflicts.
 1978 Red Cross Fundamental Rules of
International Humanitarian Law Applicable in
Armed Conflicts.
 1980 United Nations Convention on Prohibitions
or Restrictions on the Use of Certain
Conventional Weapons Which May be Deemed
to be Excessively Injurious or to Have
Indiscriminate Effects (CCW).
o 1980 Protocol I on Non-Detectable
Fragments.
o 1980 Protocol II on Prohibitions or
Restrictions on the Use of Mines, Booby-
Traps and Other Devices.
o 1980 Protocol III on Prohibitions or
Restrictions on the Use of Incendiary
Weapons.
o 1995 Protocol IV on Blinding Laser
Weapons.
o 1996 Amended Protocol II on
Prohibitions or Restrictions on the Use of
Mines, Booby-Traps and Other Devices.