(Disponible en français : Vingt ans plus tard : le Statut de Rome de la Cour pénale internationale)
18 December 2018 marks 20 years since Canada signed the Rome Statute of the International Criminal Court (Rome Statute), the treaty that established the International Criminal Court (ICC) in The Hague.
The ICC is an independent international tribunal that can prosecute individuals for the most serious crimes under international law, namely genocide, crimes against humanity, war crimes and the crime of aggression. It is a “court of last resort” that acts only when national courts are unwilling or unable to prosecute perpetrators of these crimes.
Canada’s Contributions to the International Criminal Court
The Government of Canada notes that it played a “pivotal role” in establishing the ICC and continues to support the ICC through its leadership, advocacy and resources. After signing the Rome Statute in 1998, Canada was the first country to enact legislation to implement it in domestic law with the Crimes Against Humanity and War Crimes Act in 2000. The first President of the Court, the lead judge responsible for the administration of the ICC, was Canadian Philippe Kirsch. Scholars estimate that Canada funds approximately 5% of the ICC’s budget.
Jurisdiction of the International Criminal Court
In accordance with the Rome Statute, the ICC can only exercise jurisdiction in a situation where
- the crimes were committed by a State Party national, or in the territory of a State Party or a non-State Party that has accepted jurisdiction of the ICC; or
- the crimes were referred to the ICC by the United Nations (UN) Security Council.
For crimes within the jurisdiction of the ICC (i.e., crimes that do not require a Security Council referral), a State Party may refer the situation to the Prosecutor or the Prosecutor may initiate an investigation.
Since the Rome Statute came into effect in 2002, the ICC has presided over 28 cases for defendants from the Central African Republic, Côte d’Ivoire, Darfur in Sudan, the Democratic Republic of the Congo (DRC), Kenya, Libya, Mali and Uganda. Defendants from Burundi and Georgia are under investigation. It has convicted eight individuals involving three cases from the DRC and one from Mali. Defendants for crimes in Afghanistan, Colombia, Guinea, Iraq, the United Kingdom, Nigeria, Palestine, the Philippines, Bangladesh, Myanmar, Ukraine and Venezuela are currently under preliminary examination – a process that determines if the situation meets the legal criteria in the Rome Statute.
Recent Canadian Calls for Action
Most recently, Canada has called on the ICC to initiate cases for crimes committed in Venezuela and Myanmar. On 20 September 2018, the House of Commons unanimously adopted a motion to call on the UN Security Council to refer the situation in Myanmar to the ICC for the country’s alleged genocide, crimes against humanity and war crimes against the Rohingya minority.
On 26 September 2018, Canada joined Argentina, Chile, Colombia, Paraguay and Peru in referring the situation in Venezuela to the ICC. In the referral, the countries called on ICC Prosecutor Fatou Bensouda to investigate the Venezuelan government for crimes against humanity regarding its treatment of political opponents.
State Party Referral
Most cases brought to the ICC have been self-referrals from State Parties for crimes allegedly committed in their own territory. Once a State Party refers a situation to the Prosecutor, the ICC opens a preliminary examination.
Since February 2018, the ICC has been conducting a preliminary examination into the situation in Venezuela concerning crimes allegedly committed by its government. The Venezuela referral is the first time that States Parties have referred another State Party to the ICC.
After the referral from Canada and the five other States, the President of the ICC assigned the situation in Venezuela to the Pre-Trial Chamber I, where the Pre-Trial judges will determine whether the ICC has jurisdiction over this case and whether there is enough evidence for the case to be admissible. As a court of last resort, the ICC Prosecutor will also have to establish that the Venezuelan government has failed or refused to investigate crimes against its citizens.
UN Security Council Referral
When crimes have been committed in countries that are not party to the Rome Statute, the UN Security Council must refer these situations to the ICC for the Court to have jurisdiction. For example, Myanmar is not a State Party to the Rome Statute, which explains why Canada is appealing to the UN Security Council to refer the crimes against the Rohingya in Myanmar to the ICC.
In September 2018, the ICC Pre Trial Chamber ruled that the ICC could exercise jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh. The Rome Statute considers deportation committed as part of an organized attack against a civilian population as a crime against humanity. According to the Pre-Trial Chamber, the ICC has jurisdiction because the crime occurred partly on the territory of Bangladesh, a State Party.
In the past, the UN Security Council has only referred two cases to the ICC: Darfur in Sudan in 2005 and Libya in 2011. In May 2014, 58 member states, not including Canada, issued a statement calling for the UN Security Council to refer Syria, a non-State Party, to the ICC for widespread human rights violations. Two permanent members of the UN Security Council, China and Russia, vetoed this attempted referral. Three of the five permanent members of the UN Security Council – China, Russia and the U.S. – are not State Parties to the Rome Statute.
Critiques of the International Criminal Court
While 123 states are party to the Rome Statute, some major powers – including China, India, Russia, and the United States (U.S.) – are not. Some contend that the ICC is weakened without the support of these countries. Others argue that the ICC needs to hold these countries accountable if crimes are committed in their territory or by their nationals. Still, with only 28 cases and eight convictions over its history, others suggest that it is an inefficient, costly and ineffective institution.
The U.S. has long criticized the ICC as infringing on state sovereignty. In response to reports from November 2017 that the ICC was preparing to investigate war crimes in Afghanistan, including ones allegedly committed by members of the U.S. armed forces and the Central Intelligence Agency, the U.S. National Security Advisor denounced the ICC in his first public speech within his role.
Other critics of the ICC allege that the Court has an African bias since most of its cases focus on the continent. In October 2017, Burundi became the first country to officially withdraw from the ICC, contending that the ICC has “deliberately [been] targeting Africans for prosecution.” The ICC is nevertheless continuing its investigation into crimes committed in Burundi while the country was a State Party to the ICC.
South Africa and the Gambia both gave notice that they would withdraw in October 2016, but later reversed their decisions. The African Union supported these withdrawals and in January 2017 adopted a non-binding withdrawal strategy that proposed amendments to the Rome Statute and pushed to expand the jurisdiction of African-based courts, although it faced formal reservations from Nigeria, Senegal, Cape Verde and Liberia.
In response to allegations of African bias, proponents of the ICC maintain that it is an important mechanism to end impunity, hold governments accountable and provide justice to African victims. They also highlight that four African governments – Uganda, the DRC, Central African Republic and Mali – have referred crimes committed in their own territory to the ICC.
As the Rome Statute marks its 20th year, the world will be watching how this relatively young institution evolves.
Coalition for the International Criminal Court, International Criminal Court.
Government of Canada, About Canada and the International Criminal Court, 3 December 2018.
Laura Barnett, The International Criminal Court: History and Role, Publication no. 2002-11-E, Parliamentary Information and Research Service, Library of Parliament, 28 June 2013.
Valerie Oosterveld, “Canada and the Development of International Criminal Law: What Role for the Future?,” Centre for International Governance Innovation, No. 16, March 2018.
“Myanmar: why an IIIM and Security Council referral are needed despite the ICC ruling relating to Bangladesh,” International Commission of Jurists, 13 September 2018.
ABA-ICC Project, How the ICC works.
Holly K. Sonneland, “Explainer: The Case against Venezuela in the ICC,” Americas Society/Council of the Americas, 4 October 2018.
Author: Marie Dumont, Library of Parliament