International Criminal Court (ICC)

Background
The Statute of the International Criminal Court (ICC) was adopted in Rome on 17 July 1998, as the
result of an international diplomatic conference organized under the aegis of the UN. The Rome Statute
entered into force on 1 July 2002. The Court has its seat in The Hague, Netherlands, andstarted
functioning in March 2003 when the prosecutor, judges, and registrar were appointed. As ofJune
2015, 123 States have ratified the Rome Statute. The latest countries that have deposited their instruments
of ratification to the Court are Grenada, Tunisia, the Philippines, the Maldives, Cape Verde, Vanuatu,
Guatemala, Cote d’Ivoire, and Palestine respectively in May, June, August, September, October,
December 2011, April 2012, February 2013, and January 2015.

The ICC fills a void in the ability of the international community to punish the perpetrators of the most
serious crimes of international concern. The Rome Statute was adopted with the goal of expanding on
the work of the ad hoc International Criminal Tribunals established for the former Yugoslavia (ICTY)
and for Rwanda (ICTR) in 1993 and 1994. The ICC has jurisdiction over individuals accused of the
crime of genocide, war crimes, crimes against humanity, and the crime of aggression (Art. 5 of the
Rome Statute).

However, one aspect of the ICC that limits its international scope is the fact that, contrary to the ICTY
and ICTR, it does not have primacy over national criminal jurisdictions but rather is complementary to
the domestic prosecution. The ICC initiates proceedings only if the State in question is “unwilling or unable
genuinely to carry out the prosecution or investigation” (Statute, Art. 17). This means that if a national
legal entity is carrying out such proceedings, the ICC may not act unless it can prove that the proceedings
are not being carried out in good faith (explained further in Section IV). The aim of this approach is to
encourage States to carry out their own prosecutions whenever possible.

Another compromise that was reached in establishing the Court actually subordinates the exercise of
the ICC’s jurisdiction to the prior consent of States. Whether a case concerns genocide, war crimes, or
crimes against humanity, the Court may only investigate the crimes if either the State of nationality of
the person accused or the State on whose territory the crime was committed has accepted the ICC’s
jurisdiction (Statute, Art. 12). The absence of any reference to the State of nationality of the victim or
of the State where the accused is located has doomed the most realistic scenarios under which
investigations might have been triggered. Today, 90 percent of conflicts are internal; therefore, the
State of nationality of the criminal and the State where the crime was committed are often the same.
Finally, the Statute includes a provision allowing States to refuse the Court’s jurisdiction over warcrimes
for seven years after the statute’s entry into force for the State concerned (Statute, Art. 124).

The Security Council of the UN enjoys a high level of authority regarding the jurisdiction of the ICC. It
is the only body that can bypass the requirement of State consent as it has the option to refer a situation
to the prosecutor when it establishes there is a threat to international peace and security.Thus, the
Security Council may impose the jurisdiction of the ICC on a State. The Security Council may also defer
or prohibit an investigation or prosecution from being started or proceeded with, for oneyear,
renewable indefinitely (Statute, Art. 16).

The ICC represents progress in the realm of international criminal law. The idea of a permanent
international criminal court was first considered after the Nuremberg Tribunal in 1945, but Statesfailed
to agree until 1998. Furthermore, the Rome Statute represents an important step in combining different
legal systems of the world. For instance, in comparison with the existing International Criminal tribunals
for the former Yugoslavia and Rwanda (which were predominantly influenced bythe common law
system), the establishment of a Pre-Trial Chamber as a check on the prosecutor andthe possibility for
victims to apply for reparations represent additions that are derived from civil law systems.

The Statute of the ICC is notably innovative in areas such as the definition of crimes and the recognition
of the right of victims to reparation.

In July 2002, when the Rome Statute entered into force, the Assembly of State Parties (ASP) adopted
two documents, the Rules of Procedure and Evidence and the Elements of Crimes. The Rules of Procedure
and Evidence is a document that helps the Court with the application of the Rome Statuteand sets out
the procedure before the Court, while the Elements of Crimes assists the Court in the interpretation and
application of the substantive crimes in the Statute, namely genocide, crimes against humanity, and
war crimes. The Elements of Crimes and Rules of Procedure and Evidence maybe amended through
proposition by (a) any State Party, (b) the judges acting by an absolute majority,and (c) the prosecutor.
Amendments have to be adopted by a two-third majority of the members of the Assembly of State Parties,
and they must be consistent with the ICC Statute (Arts. 9 and 51 of theRome Statute).

Structure and Organization of the ICC

The ICC is made up of several principal organs: the Office of the Prosecutor, the judicial Divisions and
Chambers, the Registry, and the Presidency (Art. 34 of the ICC Statute).

There is also an Assembly of States Parties (Statute, Art. 112), in which each State Party has one
representative. It is this Assembly, and not the Court itself, that is responsible for adopting the Rules
of Procedure and Evidence; for providing management oversight to the Presidency, prosecutor, and
the Registry, regarding the administration of the Court; for considering and deciding the budget of the
Court; and for examining any question relating to non-cooperation on the part of States.

The ICC’s funding (€118.75 million in 2013—proposed budget) comes from fixed contributions made
by States Parties, funds provided by the UN, and voluntary contributions from governments, international
organizations, individuals, corporations, and other entities in accordance with specificcriteria (Arts. 115
and 116 of the Rome Statute).

Office of the Prosecutor

As of 15 June 2012, the ICC prosecutor is Fatou Bensouda of Gambia. She succeeded Luis-Moreno Ocampo
of Argentina. The Prosecutor’s Office is “responsible for receiving referrals and any substantiated
information on crimes within the jurisdiction of the court, for examining them, and for conducting
investigations and prosecutions before the Court” (Art. 42 of the Statute).

The prosecutor is elected for a non-renewable nine-year term by an absolute majority of the members
of the Assembly of State Parties. He or she may be assisted by one or more deputy prosecutors, who
are elected in the same way from a list of candidates provided by the prosecutor.

The prosecutor and the deputy (or deputies) are fully independent and must all be of different
nationalities. They must be persons of high moral character, be highly competent, and have extensive
experience with criminal matters. They may not engage in any other professional occupation while
exercising the function of ICC prosecutor or deputy.

The prosecutor can nominate the personnel necessary to his or her work, such as advisors and
investigators.

Under certain circumstances, the prosecutor can launch an investigation on his or her own initiative (
proprio motu ), on the basis of information received from diverse sources, concerning crimes within
the jurisdiction of the Court. He or she may “seek additional information from states, organs of the
UN, intergovernmental or non-governmental organizations, or other reliable sources that he or she
deems appropriate, and may receive written or oral testimony” (Art. 15.2 of the Rome Statute).

If the prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she must
request authorization from the Pre-Trial Chamber. Pending its ruling, the prosecutor may “on an
exceptional basis, seek authority from the Pre-Trial Chamber to pursue necessary investigative steps
for the purpose of preserving evidence,” if there is an opportunity to obtain important evidence, or if there
is a risk that it may not be available subsequently (Statute, Art. 18.6).

The Chambers and Judges

The judicial organ of the ICC is composed of eighteen judges, divided into the different Chambers. The
judges are elected by the Assembly of State Parties from the list of candidates presented by the States
Parties (Art. 36 of the Rome Statute). They are chosen from among persons of high moral character,
impartiality, and integrity, who possess the qualifications required in their respective States for
appointment to the highest judicial offices. They must be competent in relevant areas of international law,
such as humanitarian law or human rights law, and have the necessary relevant experience in criminal law
and procedure.

In selecting the judges, States Parties must take into account the need for the representation of the
principal legal systems of the world, equitable geographic representation, and fair gender representation.
Judges will hold office for a term of nine years, and they may not be reelected. Theymay not engage
in any other professional occupation.

The judges are divided into three divisions, whose judicial functions are carried out by three Chambers
(Art. 39 of the Rome Statute):

The Appeals Division is composed of the president and four judges; the Appeals Chamber is
composed of all the judges in the Division.
The Trial Division is composed of no fewer than six judges; the Trial Chamber is composed of
three of the judges from this Division.
The Pre-Trial Division is composed of no fewer than six judges; the composition of the Pre-Trial
Chamber is decided according to the Rules of Procedure and Evidence.

The Statute provides for the possibility of having more than one Trial or Pre-Trial Chambers operating
simultaneously when the Court’s workload so requires.
The Registry
The Registry is the administrative organ of the ICC. It is responsible for the non-judicial aspects of the
administration and servicing of the Court (Statute, Art. 43). The registrar is elected by an absolute majority
of the judges for a five-year term, open for reelection once. He or she may have a deputy registrar, if
needed, who is elected in the same manner. The registrar exercises his or her functionsunder the
authority of the president of the Court. The registrar’s responsibilities include the establishment of a
Victims and Witnesses Unit (Art. 43.6 of the Rome Statute) that is in charge of assisting victims and
witnesses who appear before the Court and others who are at risk on account of testimony given by such
witnesses—namely, their families. The Unit provides for protective measures, security arrangements,
counseling, and other appropriate assistance.

The Presidency
Three judges are elected by an absolute majority of judges to the offices of president and first and
second vice presidents, for three-year terms. They can be reelected once. The Presidency is responsible for
the proper administration of the Court and any other function conferred on it in accordance withthe
Statute (Art. 38).
Jurisdiction
Exercise of Jurisdiction
The Rome Statute establishes that the exercise of jurisdiction of the Court can be triggered if a State
Party (Art. 14) or the UN Security Council (Art. 13) refers a situation to the prosecutor. The prosecutor may
also trigger the ICC’s jurisdiction, on his or her own initiative, subject to control by the Pre-Trial Chamber
(Art. 15). However, as explained, if a State Party or the prosecutor refers a situation to theICC, there
is a precondition to the Court’s exercise of jurisdiction: either the State of nationality of the accused or the
State where the crime was committed must be a party to the Rome Statute. Only areferral by the
Security Council overrides this constraint (Art. 13). It is also possible for a State that isnot a party to
the Rome Statute, but is either the State of nationality of the accused or the State wherethe crime was
committed, to accept the jurisdiction of the ICC with respect to a case, on an ad hocbasis, in which
case it must also agree to cooperate fully with the Court (Art. 12).

Furthermore, even if the court’s jurisdiction is being exercised, the Security Council can interrupt or
prevent the Court from investigating or prosecuting a situation by adopting a resolution to that effect under
Chapter VII of the UN Charter. This deferral lasts twelve months and can be renewed indefinitely (Art.
16).

As of June 2015, the Office of the Prosecutor is investigating twenty-two cases in nine situations: in the
Democratic Republic of Congo, in Northern Uganda, in Darfur (Sudan), in the Central African Republic
(2 investigations since September 2014), in Kenya, in Libya, in Côte d’Ivoire, and in theRepublic of Mali.

Regarding Uganda, the Democratic Republic of the Congo, the Central African Republic, and Mali,
referrals were made directly to the ICC by the States concerned. The Republic of Mali was the latest country
that referred a situation to the Office of the Prosecutor, on 13 July 2012.

Regarding Sudan, the Security Council referred the situation to the prosecutor, thereby imposing this
decision on the Sudanese government in the context of the conflict in Darfur (Resolution 1593, 31
March 2005). In the Libyan case, the Security Council similarly imposed the ICC’s competence bycharging
the Libyan president while authorizing an international military intervention to protect the civilian
population against its own government (Resolution 1970, 26 February 2011). Libya and Sudanare not
among the States Parties.

On 31 March 2010, the ICC Pre-Trial Chamber II authorized the prosecutor to open an investigation propio
motu into the situation of Kenya with respect to crimes against humanity allegedly committedin relation
to the post-election violence of 2007–2008. On 3 October 2011, the ICC Pre-Trial ChamberIII also
authorized the prosecutor to open an investigation propio motu into the situation in Côted’Ivoire with
respect to alleged crimes committed since 28 November 2010, as well as with regard to crimes that may
be committed in the future in the context of this situation. Côte d’Ivoire, which ratified the Rome
Statute in February 2013, had already made a declaration accepting the jurisdictionof the ICC on 18
April 2003 and more recently on 3 May 2011.
The Office of the Prosecutor is also conducting preliminary examinations in a number of situations,
including in Afghanistan, Georgia, Guinea, Colombia, Honduras, the Republic of Korea, and Nigeria.

Summary of the Rules Governing the ICC’s Exercise of Jurisdiction

The ICC can only exercise its jurisdiction over a crime if either the State of which the person accused
is a national or the State on whose territory the crime was committed has accepted the jurisdiction
of the court for this crime by ratifying the Rome Statute (Art. 12 of the Statute). This option is further
restricted if the State of nationality of the accused and the State where the crime was committed are
the same. In today’s conflicts, this is most often the case.
This restriction is not applicable if a situation is referred by the UN Security Council acting under
Chapter VII of the UN Charter (Art. 12.2).
Upon ratifying the Rome Statute, States may choose to refuse the Court’s jurisdiction over war crimes
for a period of seven years (Art. 124).
The Court’s jurisdiction may not be exercised if a case is being investigated or prosecuted by a
State that has jurisdiction over the case. This may be overruled if the Court can prove that the
proceedings were undertaken for the purpose of shielding the accused from criminal responsibility
before the ICC, if there was unjustified delay in the national proceedings, or ifthese were not
conducted independently and impartially (Arts. 17 and 20).
The Court may also exercise its jurisdiction if it proves that the State is unable to carry out the
investigation or prosecution—for instance, due to a total or substantial collapse or unavailability
of its national judicial system (Art. 17.3).
Subject Matter Jurisdiction (Jurisdiction Ratione Materiae)
Article 5 lists the crimes within the jurisdiction of the Court:

The crime of genocide (defined in Art. 6). For the purpose of the Statute, the term genocide
Means any of the following acts committed with intent to destroy, in whole or in part, a
national, ethnical,racial or religious group, as such:
1. Killing members of the group;
2. Causing serious bodily or mental harm to members of the group;
3. Deliberately inflicting on the group conditions of life calculated to bring about its physical
destruction, in whole or in part;
4. Imposing measures intended to prevent births within the group;
5. Forcibly transferring children of the group to another group.

This definition is taken from the 1948 Convention on the Prevention and Punishment of the Crime of
Genocide.

Crimes against humanity (defined in Art. 7)

 War crimes (defined in Art. 8).

However, upon ratifying the ICC Statute, States may choose to refuse the Court’s jurisdiction over war
crimes for seven years (Art. 124).

Aggression . According to Article 5.2 of the Rome Statute, the ICC shall exercise jurisdiction over the
crime of aggression once a provision is adopted in accordance with Articles 121 and 123defining the
crime and setting out the conditions under which the Court shall exercise jurisdiction with respect
to this crime. During the Review Conference of the Rome Statute held in Kampala, Uganda, between
31 May and 11 June 2010, the Assembly of State Parties adopted by consensus a definition of the
crime of aggression and a regime establishing how the Court will exercise its jurisdiction over this
crime. Inspired by General Assembly Resolution 3314, the definition of the crime of aggression was
inserted in the Rome Statute as Article 8bis. ▸ Aggression (/content/article/3/aggression)

The Elements of Crimes of the ICC have been amended to integrate those of the crime of aggression.
One of the elements affirms that the crime of aggression must be perpetrated by one or several persons “in
a position effectively to exercise control over or to direct the political or military action of the State which
committed the act of aggression.” In contrast to the other crimes under the Court’s jurisdiction,the
crime of aggression has a unique jurisdictional regime. The prosecutor may proceed to an investigation on
his own motion ( propio motu ) or on a State referral only (1) after ascertainingwhether the Security
Council has made a determination of the existence of an act of aggression (under Art. 39 of the UN
Charter); (2) where that situation concerns an act of aggression committed between States Parties; and
(3) after the Pre-Trial Division of the Court has authorized the commencement ofthe investigation if,
six months after the event, the Security Council has not recognized the act ofaggression.

The Court will not be able to exercise its jurisdiction over the crime until after 1 January 2017, when at
least thirty States Parties will have ratified or accepted the amendment and when two-third of the
State Parties will have adopted a decision to activate the Court’s jurisdiction.
Personal Jurisdiction (Jurisdiction Ratione Personae)
The Court has jurisdiction over any individual accused of a crime within the jurisdiction of the ICC, except
for any person who was under the age of eighteen at the time of the alleged commission of the crime
(Statute, Art. 26).

The Rome Statute expressly foresees that immunity can never be invoked with regard to the crimes
over which it has jurisdiction.

Article 27 of the Statute stipulates that the Court will have jurisdiction over “all persons without any
distinction based on official capacity. In particular, official capacity as a Head of State or Government,
a member of a Government or parliament, an elected representative or a government official shall in
no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself,
constitute a ground for reduction of sentence.”
This article confirms the principles emanating from the precedent established by the Nuremberg Tribunal
and the two International Criminal Tribunals for the Former Yugoslavia and Rwanda, and it gives them a
permanent and mandatory legal status. It also reaffirms provisions already adopted tothis effect in
several international conventions.

Temporal Jurisdiction (Jurisdiction Ratione Temporis)

The ICC has jurisdiction only over crimes committed after the entry into force of the Rome Statute for
the State concerned (Art. 11). This is derived from the well-established legal principle of non- retroactivity
of criminal laws, according to which a law may not be applied to acts committed beforethe law was
enacted.

Penalties
The Court may impose penalties of imprisonment for up to thirty years or, at most, a term of life
imprisonment. It may also order fines and confiscation of proceeds, property, and assets derived directly
or indirectly from that crime (Art. 77 of the Rome Statute). It is the only international institution that is
able to impose such penalties on individuals.

The sentence of imprisonment is served in a State chosen by the Court from a list of States that have
indicated their willingness to accept sentenced persons (Statute, Art. 103). The ICC supervises the
implementation of the sentences, but the conditions of imprisonment are governed by the law of the
State responsible for its implementation (Statute, Art. 106). Only the Court has the right to decide any
application for appeal and revision (Statute, Art. 105).

Relationship Between States and the ICC

Relationship between the ICC and National Jurisdictions
In contrast to the ad hoc International Criminal Tribunals, the ICC does not have primacy over national
criminal jurisdictions. Its jurisdiction is complementary to domestic systems, meaning thatthe Court’s
jurisdiction may not be exercised if a case is being investigated or prosecuted by a Statethat has
jurisdiction over it. This may be overruled if the Court can prove that the proceedings were undertaken for
the purpose of shielding the accused from criminal responsibility before the ICC, ifthere is unjustified
delay in the national proceedings, or if these are not conducted independently and impartially (Arts. 17
and 20 of the Rome Statute). The Court may also exercise its jurisdiction if theState in question is
unable to carry out the investigation or prosecution—for instance, due to total or substantial collapse or
unavailability of its national judicial system (Statute, Art. 17.3).

2. Ne Bis in Idem
This is a firmly established principle of law—in both general criminal and international law—according
to which one person may not be judged twice for the same crime (also known as protection from
double jeopardy). It is one of the main due process guarantees and is reflected in Article 20 of the
Rome Statute.

An individual tried before the ICC thus cannot be tried again before a national court for the same
crime. By the same token, the ICC may not rule on an act for which a person was already tried by a national
court. However, there are exceptions: the ICC may subsequently try the person if the proceedings in the
other court were carried out “for the purpose of shielding the person concerned from criminal
responsibility for crimes within the jurisdiction of the Court; or otherwise were not conducted
independently or impartially in accordance with the norms of due process recognized by international law
and were conducted in a manner that, in the circumstances, was inconsistent with an intent to bring the
person concerned to justice” (Art. 20.3 of the Rome Statute).
Obligations of State Cooperation and Mutual Judicial
Assistance
The Rome Statute establishes that States have a general obligation to cooperate fully with the Court
(Art. 86). However, if a State fails to cooperate, there is no provision to penalize it. Article 87, paragraphs
5 and 7, establishes the only recourse for the Court: it can notify the Assembly of StateParties (which
has no powers to penalize a State), or, if the UN Security Council referred the matter tothe ICC, it can
notify the UN Security Council about a State’s refusal to cooperate.

The obligation to cooperate is applicable to all requests made by the Court in the context of its
investigations and prosecutions. The requests may be related to the arrest and surrender of persons to
the Court, the production of documents or evidence, the identification and whereabouts of a person,
the execution of searches and seizures, and other types of assistance.

States are allowed to transmit information to the prosecutor on a confidential basis (Art. 54.3.e). If the
disclosure of such information or documents would, in the opinion of a State, prejudice its national security
interests, it may deny the Court’s request. In that case, the Court and the State must take all reasonable
steps to find a solution enabling the documents to be used without posing a threat to the national security
of the State. If the State considers that there are no means or conditions under whichit would authorize
the disclosure of the information, it must so notify the Court, which then has no recourse other than those
from Article 87, mentioned earlier.

Where is the seat of the Court?

The seat of the Court is in The Hague in the Netherlands. The Rome Statute provides that the Court may
sit elsewhere whenever the judges consider it desirable. The Court has also set up offices in the areas where
it is conducting investigations.

How is the Court funded?

The Court is funded by contributions from the States Parties and by voluntary contributions from
Governments, international organizations, individuals, corporations and other entities.

Case law
Democratic Republic of Congo

The judges have issued five arrest warrants in this situation. One in 2006 for Thomas Lubanga Dyilo,the
chief of the Union des Patriotes Congolais (UPC), a militia rebel group active in the east of DRC (Ituri); one in
2007 for Germain Katanga, the former senior commander of the Force de Résistance Patriotique en Ituri
(“FRPI”); one in 2007 for the former senior commander of the Front Nationalisteet Intégrationiste (FNI),
Mathieu Ngudjolo Chui; one in 2006 (renewed in 2012) for Bosco Ntaganda, former deputy chief of the
General Staff of the Forces Patriotiques pour la Libération du Congo (FPLC) and current alleged chief of staff
of the Congrès national pour la défense du people (CNDP), an armed group active in the east of DRC (North
Kivu); and one in 2012 for Sylvestre Mudacumura, commander of the military wing of the Forces
Démocratiques pour la Libération du Rwanda (FLDR).

Five cases have been brought before the Court: Prosecutor v. Thomas Lubanga Dyilo ; Prosecutor v. Bosco
Ntaganda ; Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui ; Prosecutor v. Callixte
Mbarushimana ; and Prosecutor v. Sylvestre Mudacumura . The accused Thomas Lubanga Dyilo, Germain
Katanga, Callixte Mbarushimana, and Bosco Ntaganda (the latter voluntarily surrendered on 22 March 2013)
are currently in the custody of the ICC. The suspect Mathieu Ngudjolo Chui was released from custody
following his acquittal by Trial Chamber II of the ICC. The prosecutorhas appealed the verdict. On 27
February 2015, the Appeals Chamber confirmed, by majority, Trial Chamber II’s decision of 18 December
2012 acquitting Mathieu Ngudjolo Chui of charges of crimes against humanity. The trial in the case
Prosecutor v. Thomas Lubanga Dyilo started on 26 January2009. On 14 March 2012, he was found guilty
of the war crimes of enlisting and conscripting children under the age of fifteen years and using them actively
in hostilities. On 10 July 2012, he was sentencedto fourteen years of imprisonment. The trial in the case of
Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui started on 24 November 2009. On 7 March
2014, Trial Chamber II of the ICC ruling in the majority rendered its judgment in this case. Germain
Katanga was found guilty, of onecount of crime against humanity (murder) and four counts of war crimes
(murder, attacking a civilian population, destruction of property and pillaging) committed on 24 February
2003. On 23 May 2014, Germain Katanga was sentenced to a total of 12 years’ imprisonment. The
confirmation of chargeshearing in the case Prosecutor v. Callixte Mbarushimana took place from 16 to 21
September 2011. On16 December 2011, Pre-Trial Chamber I decided by majority to decline to confirm the
charges againstMr. Mbarushimana and to release him from the custody of the Court, on the completion of
the necessary arrangements.

Northern Uganda

ICC judges have issued warrants of arrests for the top leaders of the Lord Resistance Army (LRA) on 8 July
2005. Joseph Kony, Vincent Otti, Okot Odhiambo, Raska Lukwiya, and Dominic Ongwen have all been
named in numerous counts of crimes against humanity and war crimes.

The case Prosecutor v. Joseph Kony, Vincent Otti, Okot Odhiambo, and Dominic Ongwen is currently
being heard before Pre-Trial Chamber II. Following the confirmation of the death of Mr. Lukwiya, the
proceedings against him have been terminated. Dominic Ongwen was surrendered to ICC custody on
16 January 2015. His trial should happen in 2016. The three remaining suspects are still at large. The three
remaining suspects are still at large.
Darfur, Sudan

For the first investigation in the Darfur region for crimes committed in 2003–2004, two arrest warrants
were issued on 2 May 2007 for Ahmad Muhammad Harun and Ali Kushayb for numerous counts of crimes
against humanity and war crimes. These warrants are outstanding. Following a second investigation,
the Pre-Trial Chamber issued on 4 March 2009 a second warrant of arrest against Omar Al Bashir for
three counts of genocide committed against the Fur, Masalit, and Zaghawa ethnic groups.

There are five cases in this situation: Prosecutor v. Ahmad Muhammad Harun (“Ahmad Harun”) and
Ali Muhammad Ali Abd-Al-Rahman (“Ali Kushayb”) ; Prosecutor v. Omar Hassan Ahmad Al Bashir ;
Prosecutor v. Bahar Idriss Abu Garda ; and Prosecutor v. Abdallah Banda Abakaer Nourain and
Saleh Mohammed Jerbo Jamus and Prosecutor v. Abdel Raheem Muhammad Hussein . A summons
to appear was issued for Mr. Abu Garda, who appeared voluntarily before the Chamber on 18 May
2009. After the hearing of confirmation of charges, in February 2010, Pre-Trial Chamber I declined to
confirm the charges. Mr. Abu Garda is not in the custody of the ICC. Two other summonses to appear were
issued for Mr. Banda and Mr. Jerbo, who appeared voluntarily on 17 June 2010; the confirmationof
charges hearing took place on 8 December 2010. On 7 March 2011, Pre-Trial Chamber I unanimously
decided to confirm the charges of war crimes brought by the ICC’s prosecutor against Mr. Banda and Mr.
Jerbo and committed them to trial. In June 2015, proceedings against Mr Jerbo were terminated because
his death, and trial of Mr Banda is still pending.

Central African Republic (CAR)

An arrest warrant for Mr. Jean Pierre Bemba, the former vice president of the DRC, was issued on 23
May 2008 for crimes against humanity and war crimes in CAR. Mr. Bemba was arrested in Brussels on 24
May 2008. Mr. Bemba, the first person to be arrested in the context of the ICC investigation in
Central African Republic, was transferred to The Hague on 3 July 2008.

On 12 January 2009, a three-day confirmation of charges hearing was held. As a consequence, ICC Pre-
Trial Chamber II decided on 15 June 2009 that Bemba would face trial. It confirmed two counts of crimes
against humanity (rape and murder) and three counts of war crimes (rape, murder, and pillaging) against
him, sending his case to trial. His trial, which was set to start on 14 July 2010, was postponed due to a
pending appeal in the case. On 19 October 2010, the ICC Appeals Chamber dismissed Jean-Pierre
Bemba’s appeal against the decision on the admissibility of his case. Trial Chamber III subsequently set
the trial’s opening for 22 November 2010. On 6 June 2011, the defencefiled an application for the
accused’s provisional release, which was denied by the Trial Chamber III on 26 September 2011. The trial
should happen at the end of the year 2015.

Libya

On 26 February 2011, the United Nations Security Council decided unanimously to refer the situation
in Libya since 15 February 2011 to the ICC prosecutor. On 3 March 2011, the ICC prosecutor announced
his decision to open an investigation in the situation in Libya, which was assigned by the Presidency to
Pre-Trial Chamber I. On 27 June 2011, Pre-Trial Chamber I issued three warrants of
arrest respectively for Muammar Mohammed Abu Minyar Gaddafi, Saif Al-Islam Gaddafi, and
Abdullah Al-Senussi for crimes against humanity (murder and persecution) allegedly
committed across Libya from 15 until at least 28 February 2011, through the State apparatus
and Security Forces.On 22 November 2011, Pre-Trial Chamber I formally terminated the case
against Muammar Gaddafidue to his death. The two other suspects remain at large.

The US-ICC Relationship

The US historically has been and continues to be an an ardent supporter of

international criminal justice, having played critical roles in the establishment and
operations of the (UN) War Crimes Commission, the WW II tribunals at Nuremberg
and Tokyo, and the modern UN ad hoc and hybrid international tribunals for the
former Yugoslavia, Rwanda, Sierra Leone, Cambodia, Lebanon and others.

The (ICC), the only permanent international criminal tribunal with a mandate to
investigate and prosecute the international atrocity crimes of genocide, crimes against
humanity, war crimes, and aggression, is the cornerstone of the system of international
criminal justice.

At present 123 nations have ratified the Rome Statute and are members of the ICC
Assembly of States Parties. While the United States played a central role in the
establishment of the Rome Statute that created the ICC, the United States is not a State
Party.

Building upon positive developments at the end of the George W. Bush administration,
the US-ICC relationship significantly progressed during the Barack Obama
administration, with the US providing varied and important support to the Court to
the fullest extent allowed under existing US law.

However, the policies of the Donald Trump administration highlighted a much more
complicated relationship between the United States and the ICC.