016 Ebdalin: “The International Criminal Court: An Overview, 2001” (Adrias)  During the Convention on the Prevention and

the Prevention and Punishment of Genocide,

2001 | Franklin M. Ebdalin | International Organization the International Law Commission (ILC) was invited to study the
desirability and possibility of establishing an international judicial
SUMMARY: On 17 July 1998, 120 States gathered in Rome for the Rome organ for the trial of persons charged with genocide.
Diplomatic Conference to adopt the Statute for the Establishment of the  Consideration of the draft statute was postponed because the States
International Criminal Court. The International Criminal Court (ICC) has failed to agree on the definition of “aggression.”
jurisdiction to try individuals for the most serious crimes of international  Events that led to the drafting of the ILC for an ICC as directed by the
concern. It is permanent in character and not limited by geographical UN General Assembly in 1992:
boundaries. o Prosecution of drug traffickers
o War crimes in the guise of ‘ethnic cleansing’ in Yugoslavia
Historical Background  UN Security Council established ad hoc tribunal for such crimes, which
The genesis of the ICC began in 1946 with the realization that important led to the realization that there was no mechanism to punish
principles and precedents should serve as basis for further codification of perpetrators of heinous crimes when national systems failed or were
international law. UN Security Council established ad hoc tribunal for such unwilling to take action against them.
crimes, which led to the realization that there was no mechanism to punish
perpetrators of heinous crimes when national systems failed or were unwilling to II. The Statute in Brief
take action against them.
Establishment - Established as a permanent institution
Statute in Brief of the Court - Has the power to exercise jurisdiction over
Established as a permanent institution, has the power to exercise jurisdiction persons for the most serious crimes of
over persons for the most serious crimes of international concern and international concern
complementary to national criminal jurisdictions. Crimes covered are genocide, - Complementary to national criminal jurisdictions
crimes against humanity, war crimes, and the crime of aggression - Seat of the Court is to be established at The
Hague in Netherlands
Philippine Position Jurisdiction, - Article 5 states that jurisdiction of the Court shall
Philippines was for the establishment of an effective and efficient ICC. In order Admissibility, be limited “to the most serious crimes of concern
for it to be effective and efficient, the Philippines submitted that the ICC should and Applicable to the international community as a whole,”
have its own international legal personality Law - Genocide, crimes against humanity, war crimes,
and the crime of aggression
Salient Issues - Note: Jurisdiction over the crime of aggression
Crime of aggression remains undefined and will not come within the only once a definition for it set by the States
jurisdiction of the Court until a definition is adopted. - Jurisdiction over natural persons, without
Article 17 of the Statute – Standards to determine whether a State is unwilling or distinction based on official capacity
unable to carry out the case. - A person who commits a crime shall be
Role of the Security Council in the ICC individually responsible and liable for such crime
- In the exercise of its jurisdiction, the Stature
I. Historical Background mandates the Court to apply:
 On 17 July 1998, 120 States gathered in Rome for the Rome 1. In the first place, this Statute, Elements of
Diplomatic Conference to adopt the Statute for the Establishment of the Crimes and its Rules of Procedure and
International Criminal Court. Evidence
 The International Criminal Court (ICC) has jurisdiction to try 2. In the second place, where appropriate,
individuals for the most serious crimes of international concern. applicable treaties and the principles and
 It is permanent in character and not limited by geographical boundaries. rules of international law, including the
 The genesis of the ICC began in 1946 with the realization that established principles of the international law
important principles and precedents should serve as basis for further of armed conflict
3. Failing that, general principles of law derived
codification of international law.
 by the Court from national laws of legal
systems of the world including, as
appropriate, the national laws of States that
would normally exercise jurisdiction over the
crime
General Nullum crimen sine lege : an action may be
Principles of punished only if it had been made punishable
Criminal Law prior to its commission
- Nullum poena sine lege : the crimes within the
jurisdiction of the Court should be defined with
clarity and precision
- Mens Rea : the person shall be criminally liable
only if the material elements of the crime are
committed with intent and knowledge
- Non-retroactivity
- A person may not be tried and punished for the
same crime twice
Composition 1. Presidency – proper administration of the Court
and 2. Appeals Division
Administration 3. Trial Division
of the Court 4. Pre-Trial Division
5. Office of the Prosecutor – receiving referrals and
any substantiated info on crimes for examination
and investigation
6. Registry - non-judicial aspects of the
administration and servicing of the Court
Investigation - Initiated by the Prosecutor
and Prosecution - Pre-trial Chamber issues a warrant of arrest
Trial - Ensure that a trial is fair, expeditious, conducted
with full respect for the rights and protection of
persons
- Trial in absentia is not allowed
Penalties - Imprisonment (may not exceed 30 years)
- Life imprisonment
- Fines
- Forfeiture of assets
- Death penalty is excluded
- Note: Does not affect application of States of
penalties prescribed by their national law
Appeal and - Prosecutor and convicted person may appeal a
Revision final decision
- Grounds: procedural error, error of fact, or error
of law
International - Court’s viability depends on the cooperation of
Cooperation national jurisdiction
and Judicial - Court may request for the arrest and surrender of
Assistance the accused by the State where he may be found
Enforcement - Imprisonment served in States who indicated their
willingness to accept sentenced persons
- If no State is designated by the court, sentence
will be served in the Host State
Assembly of - Each State has one representative in the Assembly
State Parties and entitled to one vote
- Responsible for administrative concerns
(Management, budge, non-cooperating states etc.)
Financial - Contributions from Statre Parties
Regulations - Other voluntary contributions of governments,
international organizations, individuals,
corporations etc.
Final Clauses - ICC Statute will only enter into force after
ratification by 60 states
- Amendments to the Statre may be proposed only
after the expiry of 7 years from its entry into force
III. The Philippine Position
 Philippines was for the establishment of an effective and efficient ICC
 In order for it to be effective and efficient, the Philippines submitted
that the ICC should be constituted as an independent judicial organ by
means of a multilateral treaty (not through an amendment of the UN
Charter)
 Such ICC should have its own international legal personality
IV. Salient Issues
a. Crimes Covered
o Philippine delegation strongly advocated the inclusion of drug
trafficking, terrorism, and crimes committed against UN
personnel – was not approved
o Definition of Genocide
 1948 Genocide Convention definition was adopted
o Definition of Crimes Against Humanity
 Committed as part of a widespread or systematic
attack;
 Against any civilian population;
 With knowledge of the attack
o Definition of War Crimes
 Committed as part of a plan or policy or as part of a
large-scale commission of such crimes
 Only acts which take place in a State where a
protracted armed conflict between governmental
authorities and organized armed groups exists
o Crime of aggression remains undefined and will not come
within the jurisdiction of the Court until a definition is adopted
 b. The Principle of Complementarity
o Essentially means that the Court will “complement,” not
replace national courts
o ICC can only step in when national authorities are unwilling
or unable to act
o ICC will only act in the absence of any action by national
judicial systems
o Article 17 of the Statute – Standards to determine whether a
State is unwilling or unable to carry out the case:
 The proceedings were or are being undertaken or the
national decision was made for the purpose of
shielding the person concerned from criminal
responsibility for crimes within the jurisdiction of the
Court referred to in Article 5
 There has been an unjustified delay in the
proceedings which in the circumstances is
inconsistent with an intent to bring the person
concerned to justice
 The proceedings were not or are not being conducted
independently or impartially, and they were or are
being conducted in a manner which, under the
circumstances, is inconsistent with an intent to bring
the peson concerned to justice
c. The Role of the Security Council
o The Security Council is given the power to refer situations to
the Prosecutor for investigation, but this power is not reserved
exclusively for the Council – shared by the States as well.
o Prosecutor can investigate a situation on his own
o The Security Council can delay an investigation or
prosecution by Court through a resolution.

Final Notes
 As of 21 October 2001, 139 countries have signed the Statute, 43 have
ratified.
 Birth of the ICC will only come after 60 states ratify the Treaty