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
II UNYBILC 191) as well as the 1954 Draft Code of
Offences against the Peace and Security of Mankind
([1954] vol II UNYBILC 112), both adopted by the
International Law Commission (ILC), did not result
in international treaties or institutions.
4 In the second half of the 20th century, international
law developed further, from a system of co-existence
to a more integrated system of co-operation. This
development was paralleled by the evolution of a
system of human rights protection. Nevertheless,
States were not yet willing to set aside considerations
of sovereignty and the principle of the domaine
réservé in the fields of criminal law and prosecution.
Moreover, the political division of the world created
by the Cold War (1947–91) did not allow for
universal solutions in such delicate matters.
5 It was only after the fall of the Berlin Wall that this
situation changed fundamentally (Germany,
Unification of; Berlin [1945–91]). In response to a
motion by Trinidad and Tobago in 1989 to combat
drug trafficking by means of an international
criminal court (Narcotic Drugs; Transnational
Organized Crime), the UN General Assembly
(United Nations, General Assembly) invited the ILC
to resume the drafting of an ICC Statute, a project the
ILC had already commenced in 1949, but interrupted
later for lack of support. At the same time, the
international community was again aroused by
dramatic human catastrophes, with war crimes,
crimes against humanity, and even genocide being
committed this time in dismembering Yugoslavia
(Yugoslavia, Dissolution of) and Rwanda. The UN
Security Council (United Nations, Security Council)
took decisions under Chapter VII United Nations
Charter to create two ad hoc tribunals, the
International Criminal Tribunal for the Former
Yugoslavia (ICTY) in 1993 and the International
Criminal Tribunal for Rwanda (ICTR) in 1994.
6 Energized by the end of the East–West conflict and
supported by more and more States, the ILC again
began working in earnest on a Draft Code of Crimes
against the Peace and Security of Mankind ([1991]
vol II part II UNYBILC 94), which was adopted on
first reading in 1991, and a Draft Statute for an
International Criminal Court, which was adopted in
1994. An Ad hoc Committee of State
Representatives was established to continue the
drafting work in 1994 (Representatives of States in
International Relations). It was followed by a
Preparatory Committee for the Rome Conference.
The Rome Conference finally took place from 15
June to 17 July 1998. After the adoption of the Rome
Statute on the last day of the Rome Conference and
its entry into force on 1 July 2002, the ICC was
inaugurated in The Hague, and the first 18 judges of
the ICC were sworn in on 11 March 2003.
7 The ICC aims to hold individuals accountable for
crimes that fall into the category of most grave and
large-scale violations of common values of
humanity. In that sense, it shall prevent impunity
while also setting up a permanent system to deter
potential offenders world-wide, especially with
regard to those mainly responsible who would try to
hide behind high hierarchical positions and
influential networks on the national or regional level.
An important further objective is the improvement of
solidarity within the international community in
respect of defending the interests of victims of
international crimes by bringing more justice to the
world (see also Transitional Justice in Post-Conflict
Situations; Victims’ Rights), even to the most remote
areas in the world. The ICC must be detached from
political or other inappropriate considerations,
leading to a suitable selection of cases in order to
guarantee equality before the law to all accused,
victims, and concerned States. The mere existence of
the ICC with its inherent concepts of
complementarity and subsidiarity to national
jurisdictions could strengthen the functioning of
national prosecution of international crimes and
encourage its further development (International
Criminal Courts and Tribunals, Complementarity
and Jurisdiction; International Law and Domestic
[Municipal] Law). Last, but not least, a successful
ICC open to civil society will also heighten public
confidence in and support for the international
system as a whole.
B. Structure and
Organs
1. The Court
8 The institution created by the Rome Statute is an
independent international organization with
international legal personality that disposes of the
necessary capacities to act on the international scene
and that enjoys immunity on the territories of States
Parties (International Organizations or Institutions,
General Aspects; International Organizations or
Institutions, Privileges and Immunities). At the same
time, the ICC is a complex judicial machinery for the
prosecution and trial of perpetrators of international
crimes.
9 The seat of the ICC has been established in The
Hague, The Netherlands (International
Organizations or Institutions, Headquarters). The
funds of the ICC and the Assembly of States Parties
(‘ASP’) are provided for through assessed
contributions made by States Parties and voluntary
donations from private and governmental sources
(International Organizations or Institutions,
Financing of).
10 As of December 2010, 114 States have ratified
the Rome Statute and thereby accepted the
jurisdiction of the ICC pursuant to Art. 12 (1) Rome
Statute. In that sense, the ICC is on its way to
becoming a truly universal judicial body. In 2007,
Japan, as a major player amongst the Asian States,
ratified the Rome Statute. However, several
important States still maintain their more or less firm
objections to the institution. Above all, the United
States has not ratified the Rome Statute, even though
President Obama seems to have abandoned the
explicit hostility towards the court which
characterized the relations between the ICC and the
US government under the administration of George
W Bush.
2. Organs
11 As listed in Art. 34 Rome Statute, the ICC is
composed of four organs: the two judicial organs, ie
the Presidency and the chambers divisions; the
Office of the Prosecutor (‘OTP’); and the Registry.
(a) The Judges
12 Making up the two judicial organs and fulfilling
the actual judicial function of the ICC, its judges
have a central role in the court’s functioning
(International Courts and Tribunals, Judges and
Arbitrators). According to Art. 36 Rome Statute, the
number of judges at the ICC is 18. This number may
be increased if the need arises.
13 Judges are nominated by States Parties and
elected by the ASP for a term of nine years. Elections
take place every three years for one third of the
judges. In order to establish this rhythm, the judges
elected in the first election in 2003 drew lots in order
to determine who was to serve an initial term of three,
six, or nine years. Except for those judges who were
initially elected for a term of three years, judges
generally may not be re-elected once their term of
office has elapsed.
14 According to Art. 36 (3) Rome Statute,
candidates must be of high moral character,
impartiality, integrity, and possess the qualification
for the highest judicial offices in their countries.
They must be knowledgeable either in criminal law
and procedure or in relevant areas of international
law. Equally important is the representation of the
principal legal systems of the world, an equitable
geographic representation, and a fair representation
of female and male judges. Finally, States Parties are
obliged to take into account the need for judges with
expertise in specific fields, such as gender-based
crimes, and children and armed conflict.
15 Several rules aim to guarantee the independence
and impartiality of judges, chief among them Art. 40
Rome Statute, which prohibits activities that are
likely to interfere with the judicial function or to
affect confidence in the independence of a judge.
Full-time judges may not exercise any other
professional occupation at all. According to Art. 41
Rome Statute, a judge may, at request, be excused by
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
decision on such request is taken by an absolute
majority of the judges (Art. 41 (2) (c) Rome Statute).
The Code of Judicial Ethics adopted by the judges in
2005 provides that judges must not only uphold the
independence of their office and act impartially, but
must also act to further confidence in their
independence and the appearance of impartiality.
16 Apart from their mentioned role in the
disqualification of a judge, the judges as a group also
have other responsibilities under the Rome Statute,
inter alia, adopting the Regulations of the Court
(‘ICC Regulations’) necessary for its routine
functioning (Art. 52 Rome Statute) and proposing
amendments to the Rules of Procedure and Evidence
(‘RPE’; Art. 51 (2) (b) Rome Statute) and the
Elements of Crimes (Art. 9 (2) (b) Rome Statute),
which may then be adopted by the ASP.
(b) The Presidency
17 The Presidency consists of the president and a
first and a second vice-president, who are elected
from among the judges by an absolute majority and
serve for a term of three years (Art. 38 Rome
Statute). They are eligible for re-election once.
18 The general responsibility of the Presidency is the
proper administration and efficient management of
the ICC, with the exception of the OTP (Art. 38 (3)
(a) Rome Statute). In this sense, the Presidency
decides on whether or not to require judges to serve
on a full-time basis (Art. 35 (3) Rome Statute) and
may propose to the States Parties to increase the
number of judges if necessary (Art. 36 (2) (a) Rome
Statute). It may also waive the privileges and
immunities of the registrar (Art. 48 (5) (b) Rome
Statute).
19 Besides this general responsibility, the
Presidency has several competencies concerning the
actual judicial function of the ICC: it assigns cases to
the pre-trial and trial chambers (Art. 61 (11) Rome
Statute; Reg. 46 ICC Regulations), deals with
requests by a judge (Art. 41 (1) Rome Statute) or the
prosecutor (Art. 42 (6) Rome Statute) to be excused
from a case, and decides which of the ICC’s
decisions are of fundamental importance and, thus,
to be published in all the official languages of the
ICC (Art. 50 (1) Rome Statute).
20 Besides those competencies of the Presidency,
the president also has further competencies, among
which are the representation of the ICC in concluding
the Relationship Agreement with the United Nations
(UN) (‘Relationship Agreement’) and the
Headquarters Agreement with the Host State
(‘Headquarters Agreement’; Arts 2, 3 Rome Statute).
The president is also responsible for oversight over
the registrar (Art. 43 (2) Rome Statute).
(c) The Chambers Divisions
21 The chambers of the ICC are organized into three
divisions: the Pre-Trial Division; the Trial Division;
and the Appeals Division.
(i) The Pre-Trial Division
22 The Pre-Trial Division is composed of not less
than six judges who sit in pre-trial chambers made up
of three judges. With regard to certain decisions, the
function of the pre-trial chambers may be carried out
by a single judge elected from among the chamber’s
members (Art. 39 (2) (a), (b) (iii) Rome Statute).
23 In general, the pre-trial chamber has two main
functions. It decides whether, on the basis of the case
brought by the prosecutor, there is prima facie
evidence warranting a trial, in which case it confirms
the charges (Art. 61 Rome Statute). It also decides
most questions relating to jurisdiction and
admissibility so that those, in principal, do not
burden an eventual subsequent trial.
24 The main responsibility of the pre-trial chamber
is to supervise and review the activities of the OTP
especially with regard to the exercise of the
prosecutor’s proprio motu powers (Art. 15 (3)–(5)
Rome Statute) and decisions not to investigate or
prosecute (Art. 53 (3) Rome Statute) and to ensure
the proper course of the preliminary proceedings.
25 The role of the Pre-Trial Division must still be
shaped by practice and jurisprudence. It is neither
directly comparable to that of the juge d’instruction
in, for example, the French system nor to the role of
courts with regard to investigations in other criminal
law systems. This is especially true with regard to its
powers vis-à-vis the prosecutor: the Rome Statute
generally indicates an active role for the judiciary
comparable to civil law systems and not the
unlimited freedom of action for the prosecution that
exists in most common law systems. In the interests
of justice and efficiency, a proper balance between
the importance of an independent prosecution and
the necessity of judicial supervision needs to be
found.
(ii) The Trial Division
26 At least six judges form the Trial Division, which
is divided into trial chambers composed of three
judges (Art. 39 (1), (2) (b) (ii) Rome Statute). The
trial chamber is responsible for the main part of the
proceedings, ie the actual trial, culminating in the
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
before the ICC and has jurisdiction over offences
committed against its administration of justice, such
as giving false testimony, presenting false or forged
evidence, intimidating or retaliating against
witnesses and ICC officials, as well as the acceptance
of bribes by ICC officials (Arts 70–71 Rome Statute).
(iii) The Appeals Division
28 The president and four other judges are assigned
to the Appeals Division, which at the same time
constitutes the Appeals Chamber. These judges are
the only ones who are excluded from rotation within
the chambers (Art. 39 (1), (2) (a), (4) Rome Statute).
29 The Appeals Chamber decides on appeals against
decisions on guilt or innocence or on sentence as well
as on interlocutory appeals, which may be brought
against certain decisions of the pre-trial or trial
chambers while the respective proceedings are still
on-going (Arts 81–82 Rome Statute).
30 Finally, the Appeals Chamber also decides on
applications for revision of final judgments (Art. 84
Rome Statute) as well as for the disqualification of
the prosecutor (Art. 42 (8) Rome Statute).
(d) The Office of the Prosecutor
31 The OTP is an independent organ of the ICC with
high internal autonomy for self-organization
according to the necessities of its functions. It is
responsible for the reception and examination of
referrals and information on crimes as well as for
carrying out investigations and prosecutions (Art. 42
(1) Rome Statute). The OTP is headed by a
prosecutor and one or more deputy prosecutors who
shall be persons of high moral character with
competency and experience in criminal trials. The
ASP elects them for a non-renewable term of nine
years during which, in order to guarantee their
independence, they may not have other professional
occupations or exercise possibly interfering
activities. In cases of potential partiality, they can be
excused or disqualified (Art. 42 (2)–(5) Rome
Statute).
32 Pursuant to Art. 53 Rome Statute, the OTP first
proceeds to a preliminary assessment with regard to
the jurisdiction of the ICC, admissibility, and
interests of justice for the investigation and
prosecution. During its investigations, which usually
comprise fact-finding missions in the field, the OTP
collects, examines, and tests evidence and takes
testimonies and statements of witnesses. It must
investigate incriminating and exonerating
circumstances equally and take into account the
interests of victims and witnesses (Art. 54 (1) (a)
Rome Statute). In view of the limited resources of the
ICC, the prosecutor stated that as a general rule, the
OTP should focus its investigative and prosecutorial
efforts and resources on those who bear the greatest
responsibility such as the leaders of the State or
organization allegedly responsible for those crimes
(Heads of Governments and Other Senior Officials;
Heads of State).
33 The proprio motu powers of the prosecutor are of
paramount importance to the idea of independent
international justice in criminal matters. Not
surprisingly, these powers continue to be a matter of
concern for certain States. Under Arts 13 (c) and 15
Rome Statute, the prosecutor is empowered to
initiate investigations ex officio solely based on his
or her own appreciation of a certain situation or
information. However, the OTP needs prior
authorization from the pre-trial chamber, which is
intended to counterbalance the considerable
competencies of the prosecutor by means of proper
judicial control (Art. 15 (3)–(5) Rome Statute). In
general, the pre-trial chamber also monitors the
prosecutor’s activities to ensure the integrity and
fairness of the proceedings (Fair Trial, Right to,
International Protection).
(e) The Registry
34 The Registry is responsible for the non-judicial
aspects of the administration and servicing of the
ICC (Art. 43 Rome Statute). The registrar is the
principal administrative officer of the ICC. The
person is recommended by the ASP, elected by an
absolute majority of the judges for a five-year term,
and may be re-elected once. The registrar may be
assisted by a deputy registrar.
35 The main functions of the Registry can be divided
into two general categories: the first is a wide variety
of functions within the general administration of the
ICC, such as personnel (Art. 44 Rome Statute),
budget and finance questions (see the Financial
Regulations and Rules), security and safety (Rule 13
(2) RPE), and oversight of persons in the custody of
the ICC (Reg. 90 ICC Regulations). Second, the
Registry provides assistance in the actual judicial
work of the ICC, such as maintenance of official case
records, circulation of information and official
documents among parties, and staff or translation
services. The Registry is also concerned with matters
concerning the defence and victims and, therefore,
comprises sections concerned with victim
participation in trials (Reg. 86 (9) ICC Regulations)
and support and protection for victims and witnesses
(Art. 43 (6) Rome Statute), as well as a section that
assists the defence (see Rules 20–22 RPE). Finally,
two independent Offices of Public Counsel, one for
victims and one for the defence, are part of the
Registry (Regs 77, 81 ICC Regulations).
3. The Assembly of States
Parties
36 The specific character of the ICC as an
international organization has led to an important
role for the ASP. Each State Party has one vote and
can send one delegate to the Assembly, which elects
a permanent secretariat and a bureau. If possible, the
ASP shall reach its decisions by consensus;
otherwise, a two-thirds majority for matters of
substance and a simple majority for matters of
procedure are necessary (Art. 112 Rome Statute;
International Organizations or Institutions, Voting
Rules and Procedures).
37 The ASP exercises the main legislative and
oversight functions: it adopts most of the
fundamental legal texts, provides for management
oversight regarding the administration of the ICC,
and considers and decides on the budget. It elects the
judges (Art. 36 Rome Statute), the prosecutor, and
the deputy prosecutor(s) 
(Art. 42 (4) Rome
Statute) and can, under specific circumstances,
decide upon their removal from office (Art. 46 Rome
Statute).
38 Other competencies of the ASP include reacting
to non-co-operation by States with the ICC 
(Art.
87 (5), (7) Rome Statute), the settlement of disputes
between States Parties (Art. 119 (2) Rome Statute),
and the approval of the Relationship Agreement and
of the Headquarters Agreement (Arts 2, 3 (2) Rome
Statute). In order to enhance the efficiency and
economy of the ICC, the ASP may even create an
oversight mechanism for inspection, evaluation, and
investigation of the ICC (Art. 112 (4) Rome Statute).
C. Scope and
Functioning
1. Jurisdiction and Admissibility
39 The ICC is not a court with universal jurisdiction.
One of its fundamental principles is the principle of
complementarity with regard to national criminal
proceedings, meaning that the ICC will only
investigate and prosecute cases in which national
courts are unwilling or unable genuinely to
investigate or prosecute (Art. 17 (1) Rome Statute).
The Rome Statute recognizes the primacy of national
prosecutions and, thus, reaffirms State sovereignty,
especially the sovereign and primary right of States
to exercise criminal jurisdiction (Criminal
Jurisdiction of States under International Law;
International Criminal Jurisdiction, Protective
Principle; Jurisdiction of States). In other words, the
scope of activity of the ICC is quite limited and
restricted to the highest common denominator States
could agree upon, taking into account concerns of
certain States of a too powerful independent
international justice institution.
(a) Jurisdiction ratione materiae
40 The ICC is competent to deal with an exhaustive
list of international core crimes specified in Arts 6 to
8 Rome Statute, further developed in the Elements of
Crimes. According to Art. 5 Rome Statute, the
selection of core crimes for which the ICC is
competent is limited to ‘the most serious crimes of
concern to the international community as a whole’.
41 The concept of criminal liability follows the
traditional system of definitions of crimes
comprising both factual and mental elements.
Pursuant to Art. 25 Rome Statute, the ICC may take
into account different forms of participation in
punishable acts (Criminal Responsibility, Modes of).
Besides the actual perpetration, it can also punish
various other forms of participation in a crime such
as perpetration jointly with or through another
person, aiding and abetting, ordering and soliciting,
as well as contributing to the commission of a crime
by ‘a group of persons acting with a common
purpose’ (Art. 25 (3) (d) Rome Statute). Art. 28
Rome Statute provides for the criminal responsibility
of commanders and other superiors. In the case of
genocide, direct and public incitement may also be
punished. There is also a provision for punishment of
attempted crimes.
(i) The Crime of Genocide
42 According to Art. 6 Rome Statute, the ICC’s
jurisdiction ratione materiae encompasses the crime
of genocide. The definition of this crime is taken
verbatim from Art. 2 Genocide Convention.
(ii) Crimes against Humanity
43 Crimes against humanity are laid down in Art. 7
Rome Statute. While the concept of crimes against
humanity has been known since the Charter of the
International Military Tribunal, Art. 7 Rome Statute
together with its Elements of Crimes (Art. 9 Rome
Statute) represent the most concrete and detailed
international codification of the substantive content
of crimes against humanity (Codification and
Progressive Development of International Law). It
includes several important novel crimes, such as the
crime of apartheid, forced pregnancy, and enforced
disappearances.
44 Art. 7 (1) Rome Statute lays down that in order
to constitute a crime against humanity, acts must be
‘committed as part of a widespread or systematic
attack directed against the civilian population, with
knowledge of the attack’. Art. 7 (2) (a) Rome Statute
further defines the attack as the ‘multiple
commission of acts referred to in paragraph 1 against
any civilian population, pursuant to or in furtherance
of a State or organizational policy to commit such
attack’, thus laying down a compromise between the
position held by some States that the requirements
‘widespread’ and ‘systematic’ in Art. 7 (1) Rome
Statute should be cumulative and the position that
either of the two requirements should suffice. Be that
as it may, Art. (7) (2) (a) Rome Statute requires de
lege lata that the attack against any civilian
population must be ‘pursuant to or in furtherance of
a State or organizational policy to commit such
attack’. A merely passive role in the sense of absence
of governmental or organizational action would not
be sufficient for an attack, even though footnote 6 of
the Elements of Crimes clarifies that ‘a policy may,
in exceptional circumstances, be implemented by a
deliberate failure to take action, which is consciously
aimed at encouraging such attack’.
45 Art. 7 (1) Rome Statute defines 11 crimes against
humanity, including crimes committed against
individuals, such as murder, torture (Torture,
Prohibition of), enslavement (Slavery; Forced
Labour/Slave Labour), crimes of sexual violence,
and crimes directed against groups, such as
deportation or forcible transfer of population (Forced
Population Transfer; Population, Expulsion and
Transfer), persecution, and the crime of apartheid. In
addition to 10 specified crimes, the Rome Statute
also criminalizes ‘[o]ther inhumane acts of a similar
character intentionally causing great suffering, or
serious injury to body or to mental or physical health’
(Art. 7 (1) (k) Rome Statute).
46 Art. 7 (2) Rome Statute further specifies certain
crimes as contained in Art. 7 (1) Rome Statute.
47 Art. 7 Rome Statute comprises several acts
linkable to genocidal incidents, such as murder,
forced pregnancy with the intent of affecting the
ethnic composition of a population (Ethnic
Cleansing), extermination, persecution, and
violations of physical integrity. The article could
therefore also serve as a subsidiary provision if a
suspect cannot be held responsible for genocide.
(iii) War Crimes
48 The third category of crimes within the
jurisdiction of the ICC is war crimes as defined in
Art. 8 Rome Statute. The regime is inspired by the
law of the Geneva Conventions I–IV and the rules of
the (customary) international law of armed conflict
and explicitly refers to these sources. This is
especially true with regard to Art. 8 (2) (b) and (e),
which both criminalize, inter alia, conduct prohibited
by Geneva Conventions Additional Protocol I (1977)
and Geneva Conventions Additional Protocol II
(1977). In order to alleviate concerns of non-
Members to the additional protocols that they would,
in effect, be bound even by those provisions of the
protocols which had not acquired the status of
customary international law, the wording ‘within the
established framework of international law’ was
added to the chapeau of Art. 8 (2) (b) and (e) Rome
Statute.
49 Art. 8 (1) Rome Statute stresses that the ICC shall
have jurisdiction in respect of war crimes ‘in
particular when committed as part of a plan or policy
or as part of a large-scale commission of such
crimes’. This so-called threshold clause is the result
of a compromise with States worried about an
international criminal trial for isolated acts of
individuals from their troops.
50 The Rome Statute distinguishes between war
crimes in international armed conflicts (Armed
Conflict, International) and in armed conflicts not of
an international character (Armed Conflict, Non-
International), and between violations of the Geneva
Conventions I–IV and other violations. Accordingly,
the catalogue of altogether 50 war crimes is divided
into four lists: grave breaches of the Geneva
Conventions I–IV in international armed conflict
(Art. 8 (2) (a) Rome Statute); other serious violations
of the law of international armed conflict (Art. 8 (2)
(b) Rome Statute); serious violations of the common
Art. 3 Geneva Conventions I–IV in non-international
armed conflict (Art. 8 (2) (c) Rome Statute); and
other serious violations of international law in non-
international armed conflict (Art. 8 (2) (e) Rome
Statute). According to 
Art. 8 (d) and (f) Rome
Statute, acts committed in situations of internal
disturbances and tensions, such as, for example,
riots, are excluded from the scope of the article (cf
Art. 1 (2) Additional Protocol II).
51 The definitions provided for by the Rome Statute
and the related Elements of Crimes are very detailed
and sometimes more specific than the corresponding
rules of the international law of armed conflict.
However, the definitions must be read in light of
existing international humanitarian law and
interpreted ‘within the established framework of the
international law of armed conflict including, as
appropriate, the international law of armed conflict
applicable to armed conflict at sea’, according to the
introduction to Art. 8 Elements of Crimes.
52 Pursuant to the Elements of Crimes, there is no
requirement for a legal evaluation by the perpetrator
as to the existence of an armed conflict or its
character as international or non-international and no
requirement for awareness by the perpetrator of the
facts that established the character of the conflict as
international or non-international but only for the
awareness of the factual circumstances that
established the existence of an armed conflict
(Introduction Art. 8 Elements of Crimes). The link,
also called ‘nexus’, between the illegal acts and the
armed conflict cannot be merely accidental but must
represent a true connection.
(iv) The Crime of Aggression
53 The crime of aggression is included in the list of
crimes within the jurisdiction of the ICC in Art. 5
Rome Statute (Peace, Right to, International
Protection). At the review conference in Kampala in
2010, the States Parties adopted a historic
amendment to the Rome Statute, including a
definition of the ‘crime of aggression’ and the ‘act of
aggression’, as well as determining preconditions
and procedural provisions for exercising the ICC’s
jurisdiction over the crime of aggression. This
jurisdiction needs to be activated by the States Parties
on 1 January 2017 at the earliest. The court will only
have jurisdiction over cases of aggression committed
at least one year after the ratification or acceptance
of the amendments by at least 30 States Parties.
54 The most controversial part of the Kampala
negotiations was the question whether proceedings
can be triggered by actors other than the UN Security
Council. The Kampala negotiations had to deal with
highly sensitive issues centred on the ICC’s
relationship with the UN Security Council in cases of
aggression, especially concerning the Security
Council’s power under Art. 39 UN Charter to
‘determine the existence of any … act of aggression’.
The permanent members of the Security Council and
some other States had proposed that such a
determination by the Security Council should be a
precondition for the exercise of the ICC’s
jurisdiction, a position that was opposed primarily by
States from the Non-Aligned Movement (NAM). In
the final compromise, not only the Security Council
but also States Parties as well as the prosecutor can
trigger proceedings, although under strict conditions.
In respect of a non-State Party the ICC shall not
exercise its jurisdiction over the crime of aggression
when committed by that State’s nationals or on its
territory (see Art. 15bis (5) 
Rome Statute).
Furthermore, the exercise of jurisdiction over the
crime of aggression committed by a State Party is
subject to the authorization by the entire Pre-Trial
Division (when proceedings are triggered by a State
Party or by the prosecutor) and require the aggressor
State’s prior consent. Interestingly, this consent is
presupposed unless the State Party ‘has previously
declared that it does not accept such jurisdiction by
lodging a declaration with the Registrar’ (Art. 15bis
(4) 
Rome Statute). One aspect of the Kampala
compromise which needs to be analysed further is
whether this ‘opt-out procedure’ may contradict the
provision on amendments in Art. 121 (5) Rome
Statute, which states that amendments only apply
vis-à-vis those States Parties which accepted them.
(b) Jurisdiction ratione temporis
55 The limitations resulting from the jurisdiction
ratione temporis rules of the Rome Statute are
considerable. According to Art. 11 (1) Rome Statute,
the ICC is only competent with regard to crimes
committed after the entry into force of the Rome
Statute, 1 July 2002, for original members. With
respect to States that later become parties to the
Rome Statute, the relevant date is the first day of the
month after the 60th day following the deposit of the
instrument of ratification, according to Art. 126 (2)
Rome Statute. The Rome Statute has thus embodied
the principle of non-retroactivity of the effect of
international treaties. This is one reason why a
different solution in the form of Mixed Criminal
Tribunals (Sierra Leone, East Timor, Kosovo,
Cambodia) had to be found to deal with crimes
committed in Sierra Leone, East Timor (Timor), and
Cambodia (Cambodia Conflicts [Kampuchea]). One
may say that the ICC’s jurisdiction ratione temporis
is set up so as to grant States tabula rasa in respect
of their nationals for events happening before the
entry into force of the Rome Statute. This principle
was a common negotiating basis for most, if not all,
States participating in the elaboration of the Rome
Statute.
56 With regard to Art. 126 (2) Rome Statute,
however, the Statute contains a certain degree of
flexibility. First, any non-Member State can make a
formal declaration under Art. 12 (3) Rome Statute
accepting the jurisdiction of the ICC with regard to
certain crimes. Côte d’Ivoire was the first State to use
this possibility in 2005. Second, the UN Security
Council may refer a situation to the ICC based on
Art. 13 (b) Rome Statute; however the ICC remains
bound by the limitations to the jurisdiction ratione
materiae. In both cases, only the basic rule of Art. 11
(1) Rome Statute—limiting the jurisdiction to crimes
committed after 1 July 2002—applies.
57 A restrictive exception is the so-called
‘transitional provision’ of Art. 124 Rome Statute,
which allows new States Parties to exclude, for a
period of seven years after the entry into force of the
Rome Statute for themselves, war crimes involving
their territory or nationals from the jurisdiction of the
ICC. Up until 2010, two States—Colombia and
France—have availed themselves of this option. In
2008 France, however, withdrew its declaration. The
effects of the Colombian declaration expired on 1
November 2009.
(c) Jurisdiction ratione loci and Jurisdiction
ratione personae
58 Pursuant to Art. 12 (2) (a) and (b) Rome Statute,
the ICC has jurisdiction if crimes have been
committed on the territory of a State Party including
vessels and aircraft if it is the State of registration
(Flag of Ships) or if the accused is a national of a
State Party (Nationality). Accordingly, the Rome
Statute has chosen a quite classical, if not
conservative and State sovereignty-oriented,
approach with respect to the preconditions for the
exercise of criminal jurisdiction. The principle of
territoriality and the active personality principle are
the two most recognized, indeed, universally
accepted, bases for exercising criminal jurisdiction
under international law. The necessity for a link
between a State Party and the crime means that
universality is not, as such, a concept of the Rome
Statute. In particular, the jurisdiction is not linked to
the custodial State, an omission which has often been
criticized. Before and during the Rome Conference,
most States had supported a proposal according to
which custody of a suspect by a State Party would
have been a sufficient basis for the jurisdiction of the
ICC. This would have strengthened the deterrent
effect of the Rome Statute since perpetrators would
not have been able to enter the territory of any State
Party without fear of being taken into custody and
surrendered to the ICC. Another basis for the ICC’s
jurisdiction which was rejected is the passive
personality principle, which would have granted
jurisdiction where the victim was a national of a State
Party.
59 The most crucial exception to the restrictive
regime of jurisdiction summarized above is the
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
the ICC, in a resolution under Chapter VII UN
Charter, situations in which crimes under the Rome
Statute appear to have been committed regardless of
whether the preconditions for the exercise of
jurisdiction as referred to in Art. 12 (2) (a) and (b)
Rome Statute are fulfilled. In such cases, which may
also concern non-Member States, the legal basis of
the ICC’s mandate lies in the Security Council’s
powers under Chapter VII of the UN Charter. In
other words, the ICC may gain some sort of universal
jurisdiction if the Security Council actively supports
the ICC. Its Resolution 1593 (2005) of 31 March
2005, in which the Security Council ‘decide[d] to
refer the situation in Darfur since 1 July 2002 to the
Prosecutor of the [ICC]’, constituted the first time
that the Security Council used its powers under Art.
13 (b) Rome Statute. In contrast to UNSC
Resolutions 827 (1993) of 25 May 1993 and 955
(1994) of 8 November 1994, the mandate resolutions
for the ICTY and the ICTR, respectively, Resolution
1593 does not contain a binding obligation on UN
Member States to co-operate with the ICC in the
fulfilment of its mandate regarding Darfur, Sudan. In
the situation regarding Darfur, four cases with six
suspects are being heard before a pre-trial chamber.
On 4 March 2009 a pre-trial chamber issued an arrest
warrant against the current president of Sudan, Omar
Hassan Ahmad al-Bashir, on the basis of five counts
of crimes against humanity and two counts of war
crimes. The majority of the chamber found, however,
that the prosecutor did not provide enough evidence
to include the crime of genocide in the charges. This
decision was appealed by the prosecutor and on 3
February 2010, the appeals chamber directed the pre-
trial chamber to decide anew on the inclusion of
genocide charges in the warrant of arrest as the
standard of proof used by the pre-trial chamber was
found to be too demanding. A second arrest warrant
was then issued on 12 July 2010, including three
counts of genocide. Whereas three suspects appeared
voluntarily before the ICC, the other three suspects
(among them President al-Bashir) remain at large. It
remains to be seen whether UN Security Council
members and States Parties will provide enough
support for the extremely difficult task of
investigating and prosecuting crimes committed in
this situation and contribute to the arrest of the
suspects at large.
60 A second important exception enlarging the
competency of the ICC is the above-mentioned
option for non-Member States to accept on an ad hoc
basis the ICC’s jurisdiction ‘with respect to the crime
in question’ according to Art. 12 (3) Rome Statute
(see para. 56 above). In order to avoid the risk that
non-Member States may, for their own reasons,
adopt a ‘pick and choose’ attitude with respect to the
crimes in question committed on their territory and
thus, the further risk of so-called ‘asymmetric
liability’, a broad interpretation of the term ‘crime in
question’ has been chosen in Rule 44 RPE, which
refers to a situation and not to a single incident.
(d) The Principle of Complementarity
61 The principle of complementarity, as provided
for in particular in Art. 17 Rome Statute, is the
decisive basis of the entire ICC system.
Complementarity entails that judicial proceedings
before the ICC are only admissible if and when States
which would normally have jurisdiction are either
unwilling or unable genuinely to exercise their
jurisdiction. It is important to understand the
principle of complementarity as the common
response of the international community to the
question of the relationship between the jurisdiction
of the ICC and the various national criminal
jurisdictions. Consensus among UN Member States
on the sovereignty-friendly principle of
complementarity, as summarized above (para. 39),
was the decisive basis for the future ICC and was,
therefore, the conditio sine qua non for the convening
of the Rome Conference, the adoption of the Rome
Statute, and the subsequent establishment of the ICC.
Thus, in order not to challenge the jurisdiction of
Nation States per se, the ICC was given a
complementary nature as expressed in the 10th
paragraph in the Preamble to the Rome Statute and
Art. 1 Rome Statute. Functioning as a subsidiary
instance and as a court of last resort, it takes over the
tasks of passive, unwilling, or dysfunctional internal
jurisdictions as in failing States when there is a need
to preserve the interest of the international
community as a whole. The principle of
complementarity was preferred to the concept of
concurrent jurisdiction adopted for the ad hoc
international criminal tribunals. It is now reflected in
several important procedural provisions of the Rome
Statute.
62 First of all, the principle of complementarity is
applicable regardless of the trigger mechanism. The
Office of the Prosecutor must analyse the role that
national jurisdictions play in a certain situation at the
very beginning of the preliminary examination on
whether there is a sufficient basis to proceed (Art. 53
(1) (b) Rome Statute). The rules on admissibility in
Art. 17 Rome Statute clearly express that the ICC is
not competent if a case is investigated or prosecuted
on the national level; if, after an investigation, the
national jurisdiction has decided not to prosecute; or
if the suspect has already been tried for the conduct
in question (Ne bis in idem). In that respect, national
proceedings must encompass both the person and the
conduct which is the subject of the case before the
ICC. Only if a State is or has been unwilling or
unable genuinely to investigate or prosecute can the
ICC claim competency.
63 In order to determine a case of unwillingness,

Art. 17 (2) Rome Statute states in broad terms the
relevant criteria: proceedings undertaken for the
purpose of shielding a person; unjustified delay or
conduct of proceedings inconsistent with the intent
to bring the person to justice; or a lack of
independence and impartiality. It seems noteworthy
that these standards have been criticized as too high.
Future decisions will show to what extent doubts in
that respect are appropriate. In addition, the wording
of the provision provides no answer to the question
of how the ICC should deal with amnesties, pardon,
or parole granted in the aftermath of a national trial,
which might be attempts by the State to shield a
perpetrator. In such situations, the ICC may also have
to take into account the principle of ne bis in idem as
referred to in Art. 20 Rome Statute.
64 Inability can be asserted if the State is unable to
obtain the accused or necessary evidence and
testimony or if it is otherwise unable to carry out its
proceedings either due to the national judicial
system’s total or substantial collapse or its
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
Statute, the suspect, a State with jurisdiction over the
case, or a State coming under the categories of Art.
12 Rome Statute have the right to challenge
admissibility prior to, or at, the commencement of
the trial. In case of such a challenge, the execution of
requests for co-operation may be postponed by the
concerned States (Art. 95 Rome Statute).
65 The additional safeguard clause of Art. 18 Rome
Statute obliges the prosecutor to notify all States
Parties and States which normally would exercise
jurisdiction so that they are in a position to demand
the deferral of the investigation of the persons
concerned in order to investigate themselves.
Consequently, the States remain in a priority position
to decide about their role even after the prosecutor
has decided that there would be a reasonable basis to
proceed in light of Art. 17 Rome Statute. If the State
so demands, the prosecutor must defer to the State’s
investigation but may request that the State make
periodic progress reports 
(Art. 18 (2), (5) Rome
Statute).
66 Only upon the application of the OTP can the pre-
trial chamber authorize a continuation of the ICC’s
investigations or necessary investigative steps to
preserve evidence. The concerned State can appeal a
decision by the pre-trial chamber and then challenge
the admissibility of the case under Art. 19 Rome
Statute. A deferral may be reviewed by the
prosecutor if there is a significant change of
circumstances based on the State’s unwillingness or
inability genuinely to carry out the investigation. It is
obvious that the multiple possibilities to challenge
admissibility on the ground of complementarity can
delay and hinder the course of proceedings and
investigations, possibly leading to important
obstacles, for example, with regard to the collection
of evidence. The goodwill of States and their
confidence in the ICC is particularly crucial at this
point because large room for manoeuvre was left to
them, which in turn might be used for obstruction.
67 Cases are also inadmissible if not of sufficient
gravity (Art. 17 (1) (d) Rome Statute). This
additional threshold is not precisely defined in the
Rome Statute, but its aim is to ensure that the ICC
will indeed deal only with crimes of a grave
dimension.
2. Applicable Law
68 Pursuant to the hierarchy of Art. 21 (1) Rome
Statute, the ICC applies in the first place the Rome
Statute, the Elements of Crimes, and the Rules of
Procedure and Evidence. In general, these
instruments constitute a quite comprehensive and
largely self-sustaining legal regime for the ICC.
Furthermore, in the framework of its self-
organization competencies, the ICC has further
developed important texts such as the ICC
Regulations (see Art. 52 Rome Statute), the Code of
Judicial Ethics, and the Staff Regulations.
69 Besides the principles referred to elsewhere in
this contribution, the Rome Statute details several
general principles of criminal law applicable in the
proceedings of the ICC. These include, first, several
principles also found in national jurisdiction, such as
the principle of nullum crimen, nulla poena sine lege
(Arts 22, 23 Rome Statute), the exclusion of criminal
jurisdiction over persons under a certain age (in the
ICC’s case 18 years 
[Art. 26 Rome Statute]),
norms on the required mental element (Art. 30 Rome
Statute), and grounds for excluding criminal
responsibility (Arts 31, 32 Rome Statute). Other
norms are more peculiar to the ICC system, such as
norms on the irrelevance of official capacity (Art. 27
Rome Statute) and the relative irrelevance of the
superior orders excuse (Art. 33 Rome Statute), as
well as on command responsibility (Art. 28 Rome
Statute; International Criminal Courts and Tribunals,
Defences).
70 In the second place, the ICC will, in its
proceedings, apply treaties and principles and rules
of international law, including the established
principles of the law of armed conflict (General
International Law [Principles, Rules and Standards];
Sources of International Law). Finally, if the other
sources do not provide for the answer needed, the
ICC may consider general principles of law derived
from national laws of legal systems of the world (Art.
21 (1) (b), (c) Rome Statute). The actual relevance of
secondary sources will be determined by the judges
in future jurisprudence.
71 The ICC is not bound by its previous decisions
regarding the interpretation of principles and rules
(Stare decisis) but may rely on them (Art. 21 (2)
Rome Statute). Its application and interpretation of
the sources must be consistent with internationally
recognized human rights (Art. 21 (3) Rome Statute).
This rule, which indicates the special importance of
keeping international criminal law in line with
human rights law, has already led in the first
decisions to quite some reliance on international
human rights instruments and their interpretation by
treaty bodies.
3. Procedure
(a) The Pre-Trial Phase
(i) Trigger Mechanisms
72 The proceedings at the ICC can be triggered by
way of three different mechanisms listed in Art. 13
Rome Statute (International Criminal Courts and
Tribunals, Procedure). As a variation of the classic
State complaint, every State Party can refer a
situation to the prosecutor (Art. 13 (a) Rome Statute).
Consistent with the concept of the international legal
interest in the liability for international crimes and its
fundamental value for the international community,
there is no requirement of reciprocity or of a specific
interest in the matter. Even though State complaints
(Human Rights, State Complaints) have turned out to
be of quite limited practical relevance for most
international courts and human rights treaty bodies
(Human Rights, Treaty Bodies), the ICC’s first three
situations have been State referrals. More precisely,
the referrals by Uganda, the Democratic Republic of
the Congo (‘DRC’; Congo, Democratic Republic of
the), and the Central African Republic were so-called
self-referrals, where the concerned State itself
expressed its will that the offenders be brought to
justice by the ICC. In general, it seems to be
recognized that in making such referrals, States may
refer situations to the ICC without explicitly stating
that their legal systems are unable or unwilling to
investigate or prosecute. In certain constellations,
self-referrals may thus be understood as waiver[s] of
complementarity, at least as far as Art. 17 (1) (b)
Rome Statute is concerned.
73 A second and somewhat sensitive trigger
mechanism is the proprio motu power of the
prosecutor based on Arts 13 (c) and 15 Rome Statute,
which is supposed to strengthen the independence
and efficiency of the ICC. The prosecutor has the
authority to initiate an investigation on the basis of
information received. After an analysis of such
information, the prosecutor is to state a conclusion on
whether a reasonable basis to proceed exists.
However, in order actually to start the investigation,
the prosecutor needs authorization by the pre-trial
chamber. This control mechanism was instituted to
meet States’ concerns about a too powerful
prosecutor who might engage in politically
motivated investigations. The pre-trial chamber
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-
trial chamber on 26 November 2009 for opening an
investigation proprio motu in relation to the post-
election violence in Kenya 2007–8. His request has
been granted with regard to crimes against humanity
by the competent Pre-Trial Chamber II, by majority
decision of 31 March 2010. In a dissenting opinion,
the author of this article concluded that there was ‘no
reasonable basis to believe that crimes … were
committed in an “attack directed against any civilian
population” … “pursuant to or in furtherance of a
State or organizational policy to commit such attack”
as required by article 7(2)(a) of the Statute’ (Decision
pursuant to Article 15 of the Rome Statute on the
Authorization of an Investigation into the Situation
in the Republic of Kenya [Dissenting Opinion of
Judge Hans-Peter Kaul] ICC-01/09-19-Corr [31
March 2010] para. 4).
74 The third trigger mechanism is an expression of
the important relation of the ICC with the UN
system. The UN Security Council may, in a
resolution under Chapter VII UN Charter, refer a
situation to the prosecutor (Art. 13 (b) Rome Statute).
As mentioned above (para. 59), the Security Council
can enlarge the scope of activity of the ICC in that it
can refer situations in which core crimes have
allegedly been committed even if the concerned
States are not parties to the Rome Statute. The
Security Council first made use of this important
mechanism by referring the situation in Darfur,
Sudan to the ICC in its Resolution 1593 (2005).
75 A counterpart to the power of the UN Security
Council to refer situations to the ICC is the Security
Council’s power under Art. 16 Rome Statute to halt
an investigation or prosecution for a renewable
period of 12 months in a resolution adopted under
Chapter VII UN Charter. It is widely recognized that
the rationale for this provision is to provide the
Security Council in a complex international situation
in which the search for international peace and
security may be at odds with efforts to ensure
criminal justice with discretionary power to give
preference for a period of 12 months to efforts to
achieve international peace and security through
negotiation[s] even with those who might be
responsible for international crimes (Peaceful
Settlement of International Disputes). The UN
Security Council, on the initiative primarily of the
US, generally invoked Art. 16 Rome Statute in
UNSC Resolution 1422 (2002) of 12 July 2002 and
UNSC Resolution 1487 (2003) of 12 June 2003
exempting UN peacekeepers not nationals of a State
Party from the jurisdiction of the ICC for two
consecutive periods of 12 months each
(Peacekeeping Forces). The adoption of these two
resolutions has been criticized by many, including
numerous States Parties. It was argued that invoking
Art. 16 Rome Statute was not consistent with the
letter and spirit of the Rome Statute and might even
constitute an abuse of that norm. When the second
12-month period under Resolution 1487 (2003) ran
out in 2004, efforts to extend it once more through a
further resolution failed due to a lack of support from
Security Council members.
(ii) Investigation and Prosecution
76 The prosecutor carries out the preliminary
examination, notably the determination on whether
there is a reasonable basis to proceed under the Rome
Statute in accordance with Art. 53 Rome Statute.
This first evaluation of available information
comprises a test regarding jurisdiction and
admissibility (Art. 53 (1) (a), (b) Rome Statute). The
prosecutor has a significant margin of discretion with
respect to a third criterion, namely the question of
whether or not an investigation would serve the
interests of justice, taking into account the gravity of
the crime and the interests of the victims (Art. 53 (1)
(c) Rome Statute). The prosecutor has to inform the
pre-trial chamber on the decision that there is no
reasonable basis to proceed. The pre-trial chamber
can review this decision at the request of the State
making the referral or the UN Security Council or, if
it was solely based on the interests of justice, on its
own motion (Art. 53 (3) Rome Statute).
77 Once the prosecutor has started an investigation,
he or she is, pursuant to Art. 54 (1) (a) Rome Statute,
under a duty to establish the truth, covering all
relevant facts and evidence whether incriminating or
exonerating. In order to collect and examine
evidence, investigation teams can be sent to the
territory of a State and enter into co-operation
agreements with States and international
organizations (International Organizations or
Institutions, External Relations and Cooperation).
The prosecutor is under a firm obligation to respect
the interests of victims and witnesses and to keep the
necessary confidentiality. For the purposes of the
investigation, the prosecutor can request the pre-trial
chamber to issue a warrant of arrest or a summons to
appear. The Rome Statute even guarantees that
persons arrested in States Parties be promptly
brought before the competent judicial authority in the
custodial State in order to control the correct
application of the arrest warrant with a possibility of
applying for interim release 
(Art. 59 (2), (3) Rome
Statute).
(iii) Pre-Trial Hearings and Hearing on the
Confirmation of Charges before Trial
78 Once a suspect or other person has been
surrendered to the ICC, the pre-trial chamber is
tasked, in a first appearance session, with satisfying
itself that the person has been duly informed of the
charges against him or her and his or her rights under
the Rome Statute (Art. 60 (1) Rome Statute). The
chamber also decides initially and periodically
afterwards on the question of detention or interim
release and ensures that the period of detention is not
prolonged unduly because of delays caused by the
prosecutor (Art. 60 (2)–(4) Rome Statute).
79 Most importantly, according to Art. 61 Rome
Statute, the pre-trial chamber decides on whether or
not to confirm the charges on which the prosecutor
intends to seek trial. In order to do so, it holds a
hearing during which both the prosecutor and the
defence may present evidence. In exceptional
circumstances, the confirmation hearing may be held
in the absence of the charged person.
(b) The Trial
80 Subsequent to the confirmation of charges by the
pre-trial chamber, the Presidency constitutes a trial
chamber which is responsible for the ensuing
proceedings. The trial, which is public, must be fair
and impartial as well as expeditious. It must ensure
the rights of the accused and the protection of victims
and witnesses. The presence of the accused is
mandatory. The presumption of innocence—
according to which guilt must be proven by the
prosecutor and the court must be convinced beyond
a reasonable doubt—is the guiding principle of the
trial according to Art. 66 Rome Statute. When
deciding upon the admissibility of evidence, the trial
chamber may declare evidence inadmissible if it has
been obtained by means of a violation of the Rome
Statute or internationally recognized human rights
(Art. 69 (7) Rome Statute).
81 Some inquisitorial elements indicate that the
procedural regime of the ICC refrains from applying
the pure accusatorial model and gives an active role
to the trial chamber: the judges can require the
attendance and testimony of witnesses and the
production of documents and other evidence (Art. 64
(6) (b) Rome Statute; International Courts and
Tribunals, Evidence). They have explicit authority to
request all evidence necessary to establish the truth
(Art. 69 (3) Rome Statute). Nevertheless, pursuant to
Art. 74 (2) Rome Statute, the judges in their decisions
are limited to the facts and circumstances contained
in the charges of the prosecutor.
82 At the end of the trial, the judges, after a secret
deliberation, reach their final decision on innocence
or guilt and in the latter case, on the sentence. A
majority of judges is sufficient for any decision;
however, judges are expected to attempt to achieve a
unanimous decision (Art. 74 Rome Statute). The
decision may only be based on evidence submitted
and discussed at the trial. ‘Plea bargaining’ between
the prosecutor and the defence does not bind the ICC.
Before finding an accused guilty on an admission of
guilt, the ICC must satisfy itself, inter alia, that the
admission is consistent with the material already
presented in the proceedings. This is to protect the
accused from false statements and to safeguard the
interests of justice.
83 When convicted, offenders may be sentenced to
imprisonment for up to 30 years or, in exceptional
circumstances, to life imprisonment. The ICC may
also impose fines and order forfeiture of proceeds,
property, and assets derived directly from that crime
(Art. 77 Rome Statute). The death penalty cannot be
imposed.
(c) Appeal and Revision
84 Part 8 Rome Statute provides for different kinds
of appeals to the Appeals Chamber, which decides on
the application by a majority in open court and
disposes of the powers of the pre-trial and trial
chambers mutatis mutandis. Decisions of acquittal or
conviction can be appealed by the prosecutor based
on procedural errors, errors of fact, or errors of law.
The convicted person or the prosecutor on that
person’s behalf may make an appeal on the same
grounds and in addition, on any other ground that
affects the fairness or reliability of the proceedings
or decision. An appeal against a sentence may be
brought forward on the basis of disproportion
between crime and sentence (Art. 81 Rome Statute).
The decision or sentence can be reversed or amended
or a new trial can be ordered. There is an explicit rule
against changing a decision to the detriment of the
convicted person if the appeal was brought by that
person or the prosecutor on that person’s behalf (Art.
83 Rome Statute). Finally, orders regarding
reparations to victims are also subject to appeal (Art.
82 (4) Rome Statute).
85 In addition to appeals against final decisions,
parties may also bring interlocutory appeals against
certain decisions of the trial or pre-trial chambers
according to Art. 82 Rome Statute. Decisions that
may be appealed in this way include those
concerning jurisdiction or admissibility, release of
the accused, measures to preserve evidence, and
investigative steps. Any other decision may only be
appealed with the leave of the pre-trial or trial
chamber concerned if it ‘involves an issue that would
significantly affect the fair and expeditious conduct
of the proceedings or the outcome of the trial’ (Art.
82 Rome Statute). If the Appeals Chamber finds by a
majority of judges that the appeal is well-founded, it
is empowered to reverse or amend the decision or
sentence or to order a new trial.
86 Finally, the convicted person or, after the
person’s death, certain other specified persons as
well as the prosecutor on the convicted person’s
behalf, may apply for revision of the conviction or
sentence upon discovery of new evidence or of the
fact that decisive evidence taken into account at trial
was false, forged, or falsified. Revision may also be
based on serious misconduct or a serious breach of
duty by a judge participating in the conviction or the
confirmation of charges 
(Art. 84 Rome Statute). In
the case of a meritorious application, the Appeals
Chamber may reconvene the original trial chamber
or constitute a new trial chamber. It may also itself,
after hearing the parties, decide whether the
judgment should be revised.
(d) Specific Aspects
(i) Defence and Procedural Guarantees for the
Accused
87 As Arts 55 and 67 Rome Statute demonstrate,
great importance was attributed to the rights of
suspects not only during trial but also during the
investigation. 
Art. 55 contains a number of due
process guarantees in the pre-trial phase of criminal
proceedings. They should be read in light of the
presumption of innocence as referred to in Art. 66
Rome Statute as the guiding principle. Art. 55 Rome
Statute contains a prohibition of coercion; duress;
threat; torture or other form of cruel, inhuman, or
degrading treatment; and of arbitrary arrest and
detention (Detention, Arbitrary) or deprivation of
liberty (Liberty, Right to, International Protection).
Furthermore, no person shall be compelled to
incriminate himself or herself or to confess guilt, and
every person questioned has the right to get the
assistance of a competent interpreter or translator if
needed. A person who is believed to have committed
a crime within the jurisdiction of the ICC has further
rights, of which the person must be informed along
with the grounds for the suspicion. These are the
right to remain silent, the right to legal assistance,
and the right to be questioned only in the presence of
counsel.
88 Art. 67 Rome Statute lists the minimum fair trial
guarantees applicable in all stages of the
proceedings. These include the right to be informed
and to remain silent, the right to prepare the defence
in appropriate conditions and to legal assistance, the
right to question the witnesses, and the right to have
interpretation. The accused also has a right to be
present at trial but may be removed from the
courtroom if he or she continues to disrupt the trial
(Art. 63 Rome Statute). There are currently no rules
regarding the procedure in the case of an accused
person refusing to appear before the ICC or being
hindered to do so on medical reasons.
89 The accused person is entitled to conduct the
defence in person or through legal assistance of his
or her own choice. If the interests of justice so require
or the person lacks sufficient means to pay, a defence
lawyer can be assigned by the ICC. An Office of
Public Counsel for the defence was set up by the
Registry to safeguard the rights of the defence in the
early stages of an investigation and to provide
support, assistance, and information to defence
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
Statute).
90 One aspect which is of special importance for the
fair and equitable conduct of the proceedings is the
disclosure of evidence by the Office of the
Prosecutor to the defence. This concerns not only
evidence that the OTP intends to rely on at the
confirmation hearing or at trial but also evidence that
is potentially exculpatory or otherwise material to the
preparation of the defence (Arts 61 (3) b, 67 (2)
Rome Statute; Rules 76, 77 RPE). The rules on
disclosure contained in the Rome Statute and the
Rules of Procedure and Evidence are, to a large
extent, based on those contained in the US Federal
Rules of Criminal Procedure and the RPE, those of
the ICTY and the ICTR. While it is, in the first place,
up to the OTP to decide which items it intends to
disclose, the pre-trial or trial chamber is the final
arbiter in this regard. The refusal on part of the
prosecution to disclose potentially exculpatory
evidence to the accused with reference to Art. 54 (3)
(e) Rome Statute caused Trial Chamber I of the ICC
on 13 June 2008 to impose a stay on the proceedings
in Prosecutor v Thomas Lubanga Dyilo. Art. 54 (3)
(e) Rome Statute allows the prosecutor not to
disclose documents or information that he or she
obtained on the condition of confidentiality and
which are not for use at trial but solely for the
purpose of generating new evidence. The chamber
found that the prosecution had misused the provision
with the effect of improperly inhibiting the
opportunities for the accused to prepare his defence
as he was not able to access a significant body of
exculpatory evidence obtained from such providers
as the United Nations or non-governmental
organizations (‘NGOs’; The Prosecutor v Thomas
Lubanga Dyilo [Decision on the Consequences of
Non-Disclosure of Exculpatory Materials Covered
by Article 54(3)(e) Agreements and the Application
to Stay the Prosecution of the Accused, together with
Certain Other Issues Raised at the Status Conference
on 10 June 2008] ICC-01/04-01/06-1401 [13 June
2008]). The chamber subsequently lifted the stay of
proceedings only after the prosecution had agreed to
make the confidential material available to the ICC.
91 The defence, for its part, also has certain
disclosure obligations, but in keeping with the right
not to be forced to incriminate one’s self, it must only
disclose material it intends to use at the confirmation
hearing or the trial (Rule 78 RPE) and inform the
chamber and OTP if it intends to rely on an alibi or
grounds for excluding responsibility (Rule 79 RPE).
(ii) Protection of Victims and Witnesses
92 Of its own motion or upon request, a chamber
shall, according to Art. 68 Rome Statute, take
appropriate measures to protect the safety, physical,
and psychological well-being, dignity, and privacy of
victims and witnesses. Especially during the
investigation, the prosecutor also has a specific duty
to ensure such protection. Examples of such
measures are proceedings in camera, audio-visual,
and electronic presentation of evidence and the
summary presentation of evidence that could
endanger the security of witnesses. A Victims and
Witnesses Unit in the Registry, as envisaged by Art.
43 (6) Rome Statute, gives advice on appropriate
protective measures, security arrangements,
counselling, and assistance.
93 At the same time, these protection measures must
be reconciled with the rights of the defendant. The
provisions on witness protection in the Rome Statute
state that such measures shall not be prejudicial to
defence rights (see Art. 68 (1) Rome Statute).
Finding the correct balance between those competing
interests will be one of the first tasks for the pre-trial
and trial chambers.
(iii) The Role of Victims in the Proceedings
94 One important innovation of the Rome Statute is
the attention paid to the interests of victims,
especially by allowing them to take an active part in
the proceedings (Art. 68 (3) Rome Statute). This
provision also lays down that victims’ participation
must not prejudice or be inconsistent with the rights
of the accused and the conduct of a fair and impartial
trial. Finding a proper balance between these two
interests will be another task for the chambers.
95 Rule 85 RPE defines victims as ‘natural persons
who have suffered harm as a result of the commission
of any crime within the jurisdiction of the Court’ and
‘organizations or institutions that have sustained
direct harm to any of their property which is
dedicated to religion, education, art or science or
charitable purposes, and to their historic monuments,
hospitals and other places and objects for
humanitarian purposes’. The notion of ‘harm’
comprises physical and emotional suffering as well
as economic loss (see Art. 75 (1) Rome Statute).
96 According to Pre-Trial Chamber I decision of 17
January 2006 regarding the situation in the DRC,
victims have a right to participate in the investigation
phase, ie before any warrants for arrest of individuals
have been issued. At this stage, they must show
sufficient grounds to believe that they have been
harmed. Under Rule 89 (3) RPE, other persons,
notably NGOs, are entitled to make an application for
participation on behalf of victims with their consent.
97 The ICC may make an order for reparations to be
made to the victims by the convicted person (Art. 75
(2) Rome Statute). In addition, victims may request
reparations according to Rules 94 to 99 RPE. The
ASP has established a victims’ trust fund pursuant to
Art. 79 Rome Statute through which the ICC may
order that awards for reparations be made (Rule 98
RPE).
(iv) Enforcement
98 The ICC relies on States with regard to the
enforcement of the sentences. Art. 103 Rome Statute
provides that sentences ‘shall be served in a State
designated by the Court from a list of States which
have indicated to the Court their willingness to
accept sentenced persons’. The first State to sign an
agreement with the ICC on the enforcement of
sentences was Austria on 27 October 2005.
99 Fines, forfeiture measures, and reparation orders
are enforced after a co-operation request of the
Presidency by the State with which the sentenced
person or victim ‘appears to have direct connection
by reason of either nationality, domicile or habitual
residence or by virtue of the location of [his or her]
assets and property’ (Rule 217 RPE).
4. International Co-operation
and Judicial Assistance
100 According to the Rome Statute, the ICC
generally has no executive powers and no police
force of its own or other executive units.
Consequently, international co-operation with States
and judicial assistance are vital prerequisites for the
functioning of the ICC. The ICC is totally dependent
on the full, effective, and timely co-operation in
particular of States Parties. This is especially true
with regard to the crucial question of the effective
execution of arrest warrants and surrender of
suspects to The Hague. As foreseen and planned by
the founders of the ICC, the court is characterized by
the structural weakness that it does not have the
competencies and means to enforce its own
decisions. As already shown with regard to the
principle of complementarity, it was also the wish of
the ICC’s creators that States’ sovereignty prevails in
this respect.
101 On the other hand and in order to compensate
for this structural weakness of the ICC, a detailed
regime of obligations for co-operation has been
introduced into the Rome Statute. No reservations
may be made to the Rome Statute (Art. 120 Rome
Statute; Treaties, Multilateral, Reservations to). The
co-operation regime is meant to ensure that the ICC
can effectively obtain what is necessary to reach the
persons it is supposed to try. Furthermore, the
expertise and field-presence of international
organizations and NGOs are extremely important for
a successful conduct of the proceedings. This
reaffirms that the ICC depends and relies on co-
operation and executive means provided by others.
(a) Relationship with the United Nations
102 The project of the ICC was born and developed
within the UN before becoming an independent
judicial institution. The two organizations are still
closely interlinked, a relationship defined by the
Rome Statute and the Negotiated Relationship
Agreement between the International Criminal Court
and the United Nations (‘Relationship Agreement’)
concluded in conformity with Art. 2 Rome Statute.
The Preamble of the Rome Statute expresses this
relationship also by ‘[r]eaffirming the Purposes and
Principles of the Charter of the United Nations’ and
by calling for an ‘independent permanent
International Criminal Court in relationship with the
United Nations’. It also aims for consistency and
compatibility with the UN Charter, eg with regard to
the exercise of jurisdiction over the crime of
aggression (Art. 5 (2) Rome Statute). As outlined
above (at para. 54), the permanent members of the
UN Security Council had raised concerns regarding
a potential clash between the Security Council’s
power to determine the existence of any act of
aggression under Art. 39 UN Charter and the ICC’s
exercise of jurisdiction over cases of aggression
which had not been referred to the court by the
Security Council. However, the fact that France and
the United Kingdom have abstained from blocking
the consensus reached in Kampala shows that the
Security Council’s crucial role in safeguarding
international peace and security is not threatened by
extending the trigger mechanisms of the ICC’s
jurisdiction beyond the monopoly of the Security
Council. A particularly important aspect of the
relationship between the ICC and the UN is the
power of the Security Council, already referred to
above in para. 59, to refer situations to the ICC under
Art. 13 (b) Rome Statute or to defer an investigation
or prosecution under Art. 16 Rome Statute (see para.
75 above).
103 Art. 3 Relationship Agreement lays down a
general duty of close co-operation and consultation,
whenever appropriate, on matters of mutual interest.
In more detail, the agreement provides for reciprocal
representation in the form of a standing invitation to
the UN Secretary-General (United Nations,
Secretary-General) to attend certain hearings of the
chambers and all public meetings of the ICC, as well
as the granting of observer status within the UN to
the ICC (Art. 4 Relationship Agreement;
International Organizations or Institutions, Observer
Status; Observers). Another important aspect is the
exchange of information and documents of mutual
interest, especially with regard to documents and
information that could be of interest for the
proceedings of the ICC (Art. 5 Relationship
Agreement).
104 The agreement also sets rules for the
relationship between the UN Security Council and
the prosecutor, especially with regard to Security
Council referrals and deferrals and cases of non-co-
operation by States subsequent to a Security Council
referral (Art. 17 Relationship Agreement). UN co-
operation with the prosecutor is also envisaged,
especially in the context of an investigation (Art. 18
Relationship Agreement). Several rules concern the
protection of confidential information (eg Arts 18
(4), 20 Relationship Agreement). Where a suspected
person falls under the Convention on the Privileges
and Immunities of the UN, the UN shall co-operate
to waive any privileges and immunities in
accordance with that convention and the relevant
rules of international law.
105 Finally, other areas of co-operation include
administrative matters, personnel, services, and
facilities.
106 In addition to the Relationship Agreement, the
UN and its Secretary-General have special
responsibilities under the Rome Statute, such as the
deposition and consideration of signatures,
ratifications, accessions, withdrawals, declarations,
and amendments to the Rome Statute (Arts 125–127
Rome Statute) and the convening of review
conferences (Art. 123 Rome Statute; Depositary).
(b) Co-operation with States Parties
107 The States have not agreed to create an
executive mechanism with a world-wide mandate for
the ICC. Instead, they have agreed to an extensive set
of obligations for States Parties concerning
international co-operation, judicial assistance, and
enforcement contained in Part 9 Rome Statute. To be
able to fulfil the obligations contained in the Rome
Statute, a significant number of Member States have
adapted their national legislation concerning co-
operation in criminal justice matters.
108 The main obligation of States Parties is to co-
operate fully with the ICC (Art. 86 Rome Statute).
The ICC is authorized to make a request for co-
operation, which the State must handle confidentially
and, upon request by the ICC, in a manner that
protects the safety of victims, potential witnesses,
and their families (Art. 87 Rome Statute). States
Parties are obliged to create appropriate national
procedures for the execution of requests by the ICC
(Art. 88 Rome Statute).
109 Another key obligation of States is to arrest and
surrender persons found in their territory or to allow
the transit of persons being surrendered to the ICC
through their territories (Art. 89 Rome Statute; Safe-
Conduct and Safe Passage). Procedures are foreseen
for dealing with cases of ne bis in idem challenges,
competing requests, and persons being prosecuted or
having been convicted for crimes not covered by the
Rome Statute (Arts 89 (2), (4), 90 Rome Statute).
Other forms of co-operation, as detailed in Art. 93
Rome Statute, include information on the
identification and whereabouts of persons, the taking
of evidence including testimony, the examination of
places or sites, the temporary transfer of persons in
custody, and the protection of witnesses and victims.
Requests may be denied by the State where they
would be in conflict with a national ‘existing
fundamental legal principle of general application’ or
where the documents or evidence concerned relate to
its national security (Art. 93 (3), (4) Rome Statute).
The execution of requests may also be postponed for
reason of an ongoing national investigation or
prosecution or an admissibility challenge pending
before the ICC (Arts 94, 95 Rome Statute).
110 Given the sensitive nature and potential interest
of third parties in these procedures, the Rome Statute
foresees consultation[s] in cases of problems arising
in the context of a co-operation request from the ICC
(especially Art. 97 Rome Statute). Finally, Art. 98
Rome Statute provides that where complying with a
request for surrender or assistance would require the
State requested to breach its obligations towards
another State, including the obligation to first obtain
the consent of that State, the ICC may not proceed
with the request without first obtaining the co-
operation of the third State (see also Mutual Legal
Assistance in Criminal Matters).
111 It was this provision that the US government
under the Bush administration relied on in its
Bilateral Non-Surrender Agreements concluded
between 2002 and 2005 with numerous States,
including States Parties, in order to prevent the
possibility of US personnel being surrendered to the
ICC. Since President Obama, as well as members of
his administration have recently stated the intention
of the US re-engage with the ICC and repealed the
decision to refuse aid payments to States unwilling to
sign the bilateral agreements in question, the
practical and legal relevance of these agreements
seems to be diminishing.
112 In exchange for States’ co-operation with the
ICC, the court may also provide assistance to a State
Party or even a non-Member State which is
conducting an investigation or trial in respect of
crimes within the jurisdiction of the ICC or other
serious crimes (Art. 93 (10) Rome Statute).
(c) Non-Member States and International
Organizations
113 Following the pacta tertiis non nocent principle,
non-Member States are not bound by the general co-
operation rule of Art. 86 Rome Statute. However,
when the UN Security Council refers a situation to
the ICC pursuant to Art. 13 (b) Rome Statute, it may
also, under Chapter VII UN Charter, oblige non-
Member States to co-operate with the ICC. In this
vein, in Resolution 1593 (2005) referring to the ICC
the situation in Darfur, Sudan—which is not a State
Party to the Rome Statute—the Security Council
‘[d]ecide[d] that the Government of Sudan … shall
cooperate fully … and provide any necessary
assistance’ (at para. 2). Thus, universal co-operation
with the ICC may become mandatory in certain
situations through decisions of the Security Council
under Chapter VII UN Charter.
114 Art. 87 (5) Rome Statute states that non-
Member States may also be invited by the ICC to
provide information and assistance on the basis of an
ad hoc or general agreement; if they fail to comply
with obligations arising thereunder, the ICC may
inform the Assembly of States Parties or, in case of a
Security Council referral, the Security Council. The
ICC may also ask international organizations for
information or documents. In this regard, co-
operation with organizations with special capacities,
experience, and technical know-how in the field of
international tracing, police, and justice networking,
such as Interpol and Europol, may be of particular
importance.
(d) Civil Society
115 The role of civil society is not formalized or
institutionalized in the Rome Statute. Nevertheless,
private individuals and NGOs can be relevant to the
activities of the ICC as sources of important
information, especially in the field, given their often
close contacts with victims and local networks of
human rights defenders. Information coming from
NGOs and other private sources will be taken into
account by the OTP at a very early stage when
deciding on whether to begin an investigation. The
prosecutor must analyse information provided and
must inform those who has given information on the
decision not to open an investigation (Art. 15 (2), (6)
Rome Statute). The prosecutor may also, in
beginning an investigation, seek additional
information from NGOs and other reliable sources
pursuant to Art. 15 (2) Rome Statute and 
Rule 104
(2) RPE.
116 The ICC may even, in exceptional
circumstances, employ the expertise of gratis
personnel offered by NGOs to assist with the work of
any of the organs of the ICC (Art. 44 (4) Rome
Statute). Finally, Rule 103 RPE provides that not
only States but also organizations or persons may
make amicus curiae submissions to the ICC
(International Courts and Tribunals, Amicus Curiae).
D. Current Challenges
and Future Perspectives
1. General
117 On 1 July 2002, the date the Rome Statute
entered into force, a so-called ‘ICC Advance Team’,
composed of the first five members of the staff of the
future ICC, entered a completely empty office
building in The Hague to start building up the ICC.
Since then, all the ICC’s organs have been
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
approximately 1100 in 2010. Nevertheless, it cannot
be overlooked that there are still many important
challenges to overcome in the foreseeable future.
118 One challenge is the ongoing task to turn the
ICC—a new and unique international organization
with many novel and untested features—into a fully
operational and well-functioning judicial institution.
The ICC must aim to be fully understood, accepted,
and supported by the international community. In
this process of internal and external consolidation,
the emphasis will shift more and more from
organizational build-up to intensified investigations
and, finally, criminal trials. It remains essential that
the ICC continues to show—through the way it
conducts all these activities—that it is a purely
judicial, objective, neutral, and non-political
institution.
2. Role of the Prosecutor
119 The prosecutor and the OTP as the driving force
or ‘engine’ of the ICC bear a special responsibility
for the entire ICC. They are called upon to use the
legal framework of the Rome Statute and the RPE for
the sustained development of a system of
investigations and prosecutions and related working
methods that is as fair and efficient as possible.
Without such efficacious working methods and work
of the OTP, the ICC cannot function, and there may
be no or too few concrete cases.
120 Effective criminal co-operation with the ICC is
of vital importance. It is therefore indispensable that
the OTP continues to build up an increasingly solid
and reliable network of efficient international co-
operation with States Parties and other actors. This
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
practices of international criminal co-operation: fast,
creative, flexible, and unbureaucratic, with a flow of
information and supportive measures as direct as
possible. Special attention must be given to the
critical and unresolved question of arrest and
surrenders to the ICC, which are a prerequisite of
ICC trials since Art. 63 Rome Statute requires the
presence of the accused during the trial.
3. Limitations
121 Beyond this, it should not be overlooked that
there are also other limitations and constraints which
inevitably reduce the efficiency of the ICC and its
chances to work with the same degree of success as
well-established national courts. This concerns both
factual limitations and difficulties and legal
limitations inherent in the Rome Statute.
122 The gravest limitation on the factual side is the
enormous difficulty of carrying out investigations
and collecting evidence regarding mass crimes
committed in situations and regions which, as the
examples of Uganda, the DRC, and Darfur show,
may often be unstable and unsafe. The considerable
distance of many situations from the seat of the ICC
creates additional logistical and technical problems.
Another grim reality is the notorious scarcity of
financial and other resources available for
investigations and other work and activities of the
ICC.
123 With regard to legal limitations and safeguards
contained in the Rome Statute, commentators have
observed that the complementarity regime of the ICC
is quite strong, if not too strong. On the other hand,
it has been observed that the regimes of jurisdiction
and co-operation as referred to in Parts 2 and 9 Rome
Statute are quite weak, if not too weak.
124 At the same time, it does not seem wise to try to
alleviate some of these problems through
amendments to the Rome Statute under Art. 123
Rome Statute. It can be assumed that neither States
Parties nor the ICC itself have had enough time and
experience for a thorough and comprehensive
assessment of the practicability of the Rome Statute.
In such a situation, it seems all the more necessary to
avoid amendment proposals which might be divisive
or might create risks for a coherent and uniform
treaty regime. In this respect, the States Parties have
shown prudence and political wisdom when they
decided, in November 2009, to limit the discussion
on amendments at the review conference in May
2010 in Kampala to three proposals: a possible
revision of 
Art. 124 Rome Statute; the possible
adoption of a provision regarding the crime of
aggression; and the inclusion of the use of certain
weapons as war crimes in the context of an armed
conflict not of an international character. The States
Parties have demonstrated determination and unity in
their adoption of the package proposal on the crime
of aggression (see paras 53–54 above) and the
amendment of Art. 8 Rome Statute in order to
include, in a non-international armed conflict, the
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
two proposals, the Member States complement the
ICC’s jurisdiction over crimes already referred to in
the Rome Statute. On the other hand, the Assembly
decided to retain Art. 124 Rome Statute to
continuously give new Member States the
opportunity to exclude from the ICC’s jurisdiction
war crimes allegedly committed by its nationals or
on its territory for a period of seven years. As the ICC
is still a relatively young and emerging international
court, stability and continuity of its treaty regime are
probably in the well-understood interest of all
concerned in the international community.
4. Outlook
125 In sum, the founders of the ICC have created a
new system of international criminal jurisdiction
consisting of two levels which complement each
other.
126 The first level is constituted by States and their
national criminal law systems. As confirmed by the
principle of complementarity as the primary basis of
the Rome Statute, States continue to have the primary
duty to exercise their criminal jurisdiction over those
responsible for international crimes.
127 The second level is constituted by the ICC.
According to the principle of complementarity, the
ICC can only act as a last resort in cases in which
national criminal law systems are unwilling or
unable genuinely to carry out the investigation or
prosecution.
128 This complex system apparently needs more
time to be fully accepted and adhered to by all
concerned in order to develop its full potential. States
Parties need to get used to the necessity of direct, full,
and sustained support for and co-operation with
‘their’ court. The ICC itself needs full consolidation.
It must gradually develop coherent and consistent
jurisprudence. This jurisprudence must set or
reaffirm legal standards which are then observed on
a world-wide level. This may contribute to more
international justice.
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 O Triffterer (ed) Commentary on the Rome
Statute of the International Criminal Court
(2nd ed Nomos Baden-Baden 2008).
 R Dixon K Kahn, and R May (eds) Archbold:
International Criminal Courts: Practice,
Procedure and Evidence (3rd ed Sweet &
Maxwell London 2009).
 H Friman ‘The International Criminal Court
and Participation of Victims’ (2009) 22 LJIL
485–500.
 M Happold ‘Child Recruitment as a Crime
under the Rome Statute of the International
Criminal Court’ in J Doria and PI Blišcenko
The Legal Regime of the International
Criminal Court: Essays in Honour of
Professor Igor Blishchenko (Nijhoff Leiden
2009) 579–607.
 G Werle Principles of International Criminal
Law (2nd ed Asser The Hague 2009).
 S Williams and L Sherif ‘The Arrest Warrant
for President al-Bashir: Immunities of
Incumbent Heads of State and the
International Criminal Court’ (2009) 14
JC&SL 71–92.
  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
Justice
From Wikipedia, the free encyclopedia
The International Court of Justice (French La
Cour internationale de justice (CIJ), is an
international organization. It is the main judicial
organ or branch of the United Nations. In short,
International Court of Justice is ICJ; sometimes
people call it the World Court. In French language,
it is Cour internationale de justice. Established ICJ
in 1945, ICJ has its headquarters at The Hague,
Netherlands. The ICJ began its working from 1946.
It replaced an earlier similar court named Permanent
Court of International Justice. The International
Court of Justice is different from the International
Criminal Court. The ICJ uses two languages, the
English language and the French language.
The Internal Court of Justice has two major
functions. Firstly, it settles disputes, which the
member countries may bring before it. Secondly, it
may give its opinions on legal matters. Since 1980s,
many developing countries have been using the
services of the ICJ. But, in 1986, the United States of
America did not accept the court’s views on all
matters, but rather selectively, on a case-to-case
basis. Since the year 2000 the docket went down
from 23 to 12 cases. In the meantime the staff tripled.
Contents
 1 Structure
 2 Procedure
 3 Further reading
 4 Other websites
Structure
The ICJ has fifteen permanent judges. The UN
General Assembly and the UN Security Council
elects the judges. A judge serves for a nine year
period and may be re-elected if necessary. If a
serving judge dies, another judge, from the same
country he or she belonged to is generally elected to
fill the vacant position. Elections are staggered, thus
five judges (one-third of the Court) come up for
election every three years.
The fifteen permanent judges are elected from a list
of persons nominated by the national groups in the
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
Nations always have a judge from their country.
These countries are China, France, Russia, United
Kingdom, and the United States of America.
In some case, the ICJ allows Ad hoc judges. Thus,
the countries in dispute have a right to nominate one
judge each for that particular case, if desired. This
right is not available if that country already has a
judge of its nationality in the ICJ. Thus, sometimes,
instead of fifteen, seventeen judges may be deciding
a case.
There are many rules, which lay down the
qualifications and conduct of the judges of the ICJ.
Procedure
Generally, all the judges of the ICJ sit together to
hear and decide any matter. However, sometimes
smaller chambers of three to five judges hear and
decide a case. Such chambers may be for special
types of cases. Sometimes, the ICJ sets up ad hoc
chambers to hear and decide particular disputes.
While deciding the case, the ICJ applies the
principles of international law. It also uses the laws
of the civilized world. This may be the civil and
criminal law of major countries. It may also refer to
legal writings, law books, and earlier decisions while
deciding any matter.
Who are the ICJ & ICC
Background
The ICJ (International Court of Justice) and the ICC
(International Criminal Court), here as icj-icc.org,
are about the re-ratifying, re-vamping and re-
establishing the original courts’ houses, as it were in
1811 AD, before its demise began in 1877. Under our
new Services Charters for the icjglobal, icj-icc, icj-
cij and ipcc-icc (intracourts system) and interlinked
networked Supreme Court and High Courts
Tribunals we are set to correct, restore and bring
balance to all banking systems (private and public,
including on-ledger and off-ledger journals) through
processes of Accounting, Auditing and Redemption
within our Settlors Offices.
The aperture planned covert rampant and stealing of
the Royal Court files, ancestral assets and cash funds
data, which eventually led to the gruesome tragic
World War I (WW1) and World War II (WW2).
After the World War I (WW1), and after the
troublesome QINGHAI REVOLUTION in what is
now the Mainland China, the remediation of the
original KING SOLOMON 1867 PERSIA
TREASURE BANK BONDED ACCOUNTING
AND AUDITING SYSTEM and its original
contributing parties took place. And, there was also
the creation and establishment of THE LEAGUE OF
NATIONS on this Planet Earth in 1919.
The Permanent Court of International Justice (PCIJ)
which ensured Bilateral Ties were maintained for
continuation of all 1871 AD Treaties which had
temporarily stopped operations in 1917 AD at the
height of the WORLD WAR I (WW1) in order to
assure its paperwork in service for the original
LEAGUE OF NATIONS (LoN), under its original
Charter for Service was re-started in 1922. During
this time, the original 1811 AD established Apex
Court IPCC ICJ-GLOBAL SYSTEM, THE
PERMANENT COURT OF INTERNATIONAL
JUSTICE (PCIJ), THE INTERNATIONAL
CRIMINAL COURT (ICC) and THE
INTERNATIONAL COURT OF JUSTICE (ICJ),
the Tripartite Treaties Bipartisan WORLD BANK
DEVELOPMENT GROUP (WBDG) and the
UNITED NATIONS SYSTEM (UNS) continued its
operations up until 1941 AD and during the height of
the WORLD WAR II (WW2), all these operations
were stopped, temporarily.
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.
The Present
The time has once again arrived for the original 1811
banking and intracourts system to be re-established,
albeit upgraded with the most current and advanced
computers, banking and accounting systems. We,
Senior Judges of the ICJ/ICC/IPCC Conglomerate,
who represent the original 1811 systems, are
presently involved in a re-distribution process of
Historical Assets and Accounts for the betterment of
humanity. We have sanctioned and authorised the
Universal Digital Currency Reserve Foundation
(UDCRF) as part of the new Digital Reserve for
global and intergalactic currencies. Other main
objectives include the signing off on global projects
in the areas of provisions of food, water, energy and
shelter for all peoples.
The Future
The Future of the ICJ/ICC/IPCC Conglomerate is in
a World where there is a Paradigm Shift in peoples’
awareness of all things positive, where Justice is truly
very real as the ICJ continues to fight corruption in
the system and the people start to believe in a positive
future for Humanity. A future World where major
projects begin to change the landscape of the planet,
and more people start to benefit from the
redistribution of wealth from the 1% to the 99%
making for a more equitable World. More criminal
bankers, politicians and war criminals will be
brought to justice making countries and their people
regain faith in their Law and Legal Systems. We
encourage more Humanitarian entities supported by
the ICJ, to begin to have a positive effect on global
matters such as food, energy and water as well as
property and shelter for the poverty stricken areas of
the Earth. The ICJ and ICC will stand resolute to
protect people and their Nations to make sure that
Humanity do not just survive but thrive.
ARTICLE II
Q— How may international law become a part
of domestic law? Explain.
ANS: Under the 1987 Constitution, international law
can become part of the sphere of domestic
law either by transformation or incorporation.
The transformation method requires that an
international law be transformed into a
domestic law through a constitutional
mechanism such as local legislation. The
incorporation method applies when, by mere
constitutional declaration, international law is
deemed to have the force of domestic law.
Treaties become part of the law of the land
through transformation pursuant to Article
VII, Section 21 of the Constitution which
provides that “no treaty or international
agreement shall be valid and effective unless
concurred in by at least two-thirds of all the
members of the Senate.” Thus, treaties or
conventional international law must go
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
Assn. of the Phil. v. Health Secretary Duque,
et al., G.R. No. 173034, October 19, 2007).
Q — May generally accepted principles of
international law form part of the law of
the land even if they do not derive from
treaty obligations? Explain.
ANS: Yes. Generally accepted principles of
international law, by virtue of the
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
psychological element known as the opinion
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
of law requiring it. (Mijares v. Ranada, G.R.
No. 139325, April 12, 2005, 455 SCRA 397).
Q— State the concept of the term “generally
accepted principles of international law”
and give examples.
ANS: “Generally accepted principles of
international law” refers to norms of general
or customary international law which are
binding on all states, i.e., renunciation of war
as an instrument of national policy, the
principle of sovereign immunity, a person’s
right to life, liberty and due process, and
pacta sunt servanda, among others. The
concept of “generally accepted principles of
law” has also been depicted in this wise:
Some legal scholars
and judges upon certain
“general principles of law” as
a primary source of
international law because
they have the “character of jus
rationale” and are “valid
through all kinds of human
societies.” (Judge Tanaka in
his dissenting opinion in the
1966 South West Africa Case,
1966, I.C.J. 296). O’Conell
holds that certain principles
are part of international law
because they are “basic to
 legal systems generally” and
hence part of the jus gentium.
These principles, he believes,
are established by a process
of reasoning based on the
common identity of all legal
systems. If there should be
doubt or disagreement, one
must look to state practice
and determine whether the
municipal law principle
provides a just and
acceptable solution.
(Pharmaceutical & Health
Care Assn. of the Phil. v. Sec.
of Health Duque, et al., G.R.
No. 173034, October 9,
2007).
Q — What is customary international law?
Explain.
Q—
ANS: Custom or customary international law
means “a general and consistent practice of
ANS:
states followed by them from a sense of legal
obligation (opinion juris)”. This statement
contains the two basic elements of custom:
the material factor, that is, how states
behave, and the psychological or subjective
factor, that is, why they behave the way they
do.
The initial factor for determining the
existence of custom is the actual behavior of
states. This includes several elements:
duration, consistency, and generality of the
practice of states.
Q—
The required duration can be either short or
long.
ANS:
Duration therefore is not the most important
element. More important is the consistency
and the generality of the practice.
Once the existence of state practice has
been established it becomes necessary to
determine why states behave the way they
do. Do states behave the way they do
because they consider it obligatory to behave
thus or do they do it only as a matter of
courtesy? Opinio juris or the belief that a
certain form of behavior is obligatory, is what
makes practice an international rule. Without
it, practice is not law. (Pharmaceutical &
Health Care Assn. of the Phil. v. Health
Secretary Duque, et al., G. R. No. 173034,
October 9, 2007).
What is a soft law? Is it an international
law? Explain.
Soft law is an expression of non-binding
norms, principles and practices that influence
state behavior. (David Fidler, Development
Involving SARS, International Law &
Infections Disease Control at the Fifty-Six
Meeting of the World Health Assembly, June
2003, ASIL; Pharmaceutical & Health Care
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
1946 Statute of the International Court of
Justice.
Give examples of soft law.
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
Hongkong Special Administrative Region v.
Olalia; Mejoff v. Director of Prisons; 90 Phil.
70 (1951); Mijares v. Ranada; Shangri-la
International Hotel Management Ltd. v.
Developers Group of Companies Inc., G.R.
No. 159938, March 31, 2006, 486 SCRA
405).
effect to both; if inconsistent, the later in date will
control, provided that the treaty stipulation is
self- executing. But the rule applies in domestic
sphere. A treaty, even if contrary to a later statute, is
binding in international law.

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

The First Geneva Convention governing the sick and
wounded members of armed forces was signed in 1864.
declarations of war, acceptance of surrender and the
treatment of prisoners of war; military necessity,
along with distinction and proportionality; and the
prohibition of certain weapons that may cause
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
See also: Sources of international law
The signing of the First Geneva Convention by some of
the major European powers in 1864.
The modern law of war is made up from three
principal sources:[1]
 Lawmaking treaties (or conventions) — see §
International treaties on the laws of war below.
 Custom. Not all the law of war derives from or
has been incorporated in such treaties, which
can refer to the continuing importance of
customary law as articulated by the Martens
Clause. Such customary international law is
established by the general practice of nations
together with their acceptance that such
practice is required by law.
 General Principles. "Certain fundamental
principles provide basic guidance. For instance,
the principles of distinction, proportionality, and
necessity, all of which are part of customary
international law, always apply to the use of
armed force".[1]
Positive international humanitarian law consists of
treaties (international agreements) which directly
affect the laws of war by binding consenting nations
and achieving widespread consent.
The opposite of positive laws of war is customary
laws of war,[1] many of which were explored at the
Nuremberg War Trials. These laws define both the
permissive rights of states as well as prohibitions on
their conduct when dealing with irregular forces and
non-signatories.
The Treaty of Armistice and Regularization of War
signed in the Venezuelan city of Trujillo in
November 25 and 26 1820 between the president of
the Republic of Colombia, Simon Bolivar and the
Chief of the Military Forces of the Spanish Kingdom,
Pablo Morillo, is the precursor of the International
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,
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
legislative foundation (i.e., written) superseding a
regime based primarily on religion, chivalry, and
customs.[12] It is during this "modern" era that the
international conference became the forum for
debate and agreement between states and the
"multilateral treaty" served as the positive
mechanism for codification.
In addition, the Nuremberg War Trial judgment on
"The Law Relating to War Crimes and Crimes
Against Humanity"[13] held, under the guidelines
Nuremberg Principles, that treaties like the Hague
Convention of 1907, having been widely accepted by
"all civilised nations" for about half a century, were
by then part of the customary laws of war and
binding on all parties whether the party was a
signatory to the specific treaty or not.
Interpretations of international humanitarian law
change over time and this also affects the laws of
war. For example, Carla Del Ponte, the chief
prosecutor for the International Criminal Tribunal for
the former Yugoslavia pointed out in 2001 that
although there is no specific treaty ban on the use of
depleted uranium projectiles, there is a developing
scientific debate and concern expressed regarding the
effect of the use of such projectiles and it is possible
that, in future, there may be a consensus view in
international legal circles that use of such projectiles
violates general principles of the law applicable to
use of weapons in armed conflict.[14] This is because
in the future it may be the consensus view that
depleted uranium projectiles breach one or more of
the following treaties: The Universal Declaration of
Human Rights; the Charter of the United Nations; the
Genocide Convention; the United Nations
Convention Against Torture; the Geneva
Conventions including Protocol I; the Convention on
Conventional Weapons of 1980; the Chemical
Weapons Convention; and the Convention on the
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.
 People and property that do not contribute to
the war effort should be protected against
unnecessary destruction and hardship.
To this end, laws of war are intended to mitigate the
hardships of war by:
 Protecting both combatants and non-
combatants from unnecessary suffering.
 Safeguarding certain fundamental human rights
of persons who fall into the hands of the enemy,
particularly prisoners of war, the wounded and
sick, and civilians.
 Facilitating the restoration of peace.
Principles of the laws of war
1904 article outlining the basic principles of the law of
war, as published in the Tacoma Times.
Military necessity, along with distinction, and
proportionality, are three important principles of
international humanitarian law governing the legal
use of force in an armed conflict.
Military necessity is governed by several constraints:
an attack or action must be intended to help in the
defeat of the enemy; it must be an attack on a
legitimate military objective,[16] and the harm caused
to civilians or civilian property must be proportional
and not excessive in relation to the concrete and
direct military advantage anticipated.[17]
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
require that belligerents refrain from employing
violence that is not reasonably necessary for military
purposes and that belligerents conduct hostilities
with regard for the principles of humanity and
chivalry.
However, because the laws of war are based on
consensus, the content and interpretation of such
laws are extensive, contested, and ever-changing.[19]
The following are particular examples of some of the
substance of the laws of war, as those laws are
interpreted today.
Declaration of war
Main article: Declaration of war
Section III of the Hague Convention of 1907 required
hostilities to be preceded by a reasoned declaration
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
weapons openly, and conducting operations in
accordance with the laws and customs of war.
Impersonating enemy combatants by wearing the
enemy’s uniform is allowed, though fighting in that
uniform is unlawful perfidy, as is the taking of
hostages.
Combatants also must be commanded by a
responsible officer. That is, a commander can be held
liable in a court of law for the improper actions of his
or her subordinates. There is an exception to this if
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]
Persons parachuting from an aircraft in
distress
Modern laws of war, specifically within Protocol I
additional to the 1949 Geneva Conventions,
prohibits attacking persons parachuting from an
aircraft in distress regardless of what territory they
are over. Once they land in territory controlled by the
enemy, they must be given an opportunity to
surrender before being attacked unless it is apparent
that they are engaging in a hostile act or attempting
to escape. This prohibition does not apply to the
dropping of airborne troops, special forces,
commandos, spies, saboteurs, liaison officers, and
intelligence agents. Thus, such personnel descending
by parachutes are legitimate targets and, therefore,
may be attacked, even if their aircraft is in distress.
Red Cross, Red Crescent, Magen David
Adom, and the white flag
The emblem of the International Committee of the Red
Cross (French: Comité international de la croix-rouge).
Modern laws of war, such as the 1949 Geneva
Conventions, also include prohibitions on attacking
doctors, ambulances or hospital ships displaying a
Red Cross, a Red Crescent, Magen David Adom, The
Red Crystal, or other emblem related to the
International Red Cross and Red Crescent
Movement. It is also prohibited to fire at a person or
vehicle bearing a white flag, since that indicates an
intent to surrender or a desire to communicate.[citation
needed]
In either case, persons protected by the Red
Cross/Crescent/Star or white flag are expected to
maintain neutrality, and may not engage in warlike
acts. In fact, engaging in war activities under a
protected symbol is itself a violation of the laws of
war known as perfidy. Failure to follow these
requirements can result in the loss of protected status
and make the individual violating the requirements a
lawful target.[citation needed]
Applicability to states and
individuals
The law of war is binding not only upon States as
such but also upon individuals and, in particular, the
members of their armed forces. Parties are bound by
the laws of war to the extent that such compliance
does not interfere with achieving legitimate military
goals. For example, they are obliged to make every
effort to avoid damaging people and property not
involved in combat or the war effort, but they are not
guilty of a war crime if a bomb mistakenly or
incidentally hits a residential area.
By the same token, combatants that intentionally use
protected people or property as human shields or
camouflage are guilty of violations of the laws of war
and are responsible for damage to those that should
be protected. The use of contracted combatants in
warfare has been an especially tricky situation for the
laws of war. Some scholars claim that private
security contractors appear so similar to state forces
that it is unclear if acts of war are taking place by
private or public agents.[20] International law has yet
to come to a consensus on this issue.
Remedies for violations
During conflict, punishment for violating the laws of
war may consist of a specific, deliberate and limited
violation of the laws of war in reprisal.
After a conflict has ended, persons who have
committed or ordered any breach of the laws of war,
especially atrocities, may be held individually
accountable for war crimes through process of law.
Also, nations which signed the Geneva Conventions
are required to search for, then try and punish,
anyone who has committed or ordered certain "grave
breaches" of the laws of war. (Third Geneva
Convention, Article 129 and Article 130.)
Combatants who break specific provisions of the
laws of war are termed unlawful combatants.
Unlawful combatants who have been captured may
lose the status and protections that would otherwise
be afforded to them as prisoners of war, but only after
a "competent tribunal" has determined that they are
not eligible for POW status (e.g., Third Geneva
Convention, Article 5.) At that point, an unlawful
combatant may be interrogated, tried, imprisoned,
and even executed for their violation of the laws of
war pursuant to the domestic law of their captor, but
they are still entitled to certain additional protections,
including that they be "treated with humanity and, in
case of trial, shall not be deprived of the rights of fair
and regular trial." (Fourth Geneva Convention
Article 5.)
For example, in 1976, foreign soldiers fighting for
the National Liberation Front of Angola (FNLA)
were captured by the People's Movement for the
Liberation of Angola (MPLA) during the Angolan
Civil War in 1975. In the Luanda Trial, after "a
regularly constituted court" found them guilty of
being unlawful mercenaries, three Britons and an
American were shot by a firing squad on July 10,
1976. Nine others were imprisoned for terms of 16 to
30 years.
International treaties on the laws
of war
See also: List of international declarations
List of declarations, conventions, treaties, and
judgments on the laws of war:[21][22][23]
 1856 Paris Declaration Respecting Maritime Law
abolished privateering.
 1864 Geneva Convention for the Amelioration of
the Condition of the Wounded and Sick in Armed
Forces in the Field.[24]
 1868 St. Petersburg Declaration Renouncing the
Use of Explosive projectiles Under 400 grams
Weight.
 1874 Project of an International Declaration
concerning the Laws and Customs of War
(Brussels Declaration).[25] Signed in Brussels 27
August. This agreement never entered into
 force, but formed part of the basis for the
codification of the laws of war at the 1899 Hague
Peace Conference.[26][27]
 1880 Manual of the Laws and Customs of War at
Oxford. At its session in Geneva in 1874 the
Institute of International Law appointed a
committee to study the Brussels Declaration of
the same year and to submit to the Institute its
opinion and supplementary proposals on the
subject. The work of the Institute led to the
adoption of the Manual in 1880 and it went on
to form part of the basis for the codification of
the laws of war at the 1899 Hague Peace
Conference.[27]
 1899 Hague Conventions consisted of three main
sections and three additional declarations:
o I – Pacific Settlement of International
Disputes
o II – Laws and Customs of War on Land
o III – Adaptation to Maritime Warfare of
Principles of Geneva Convention of 1864
o Declaration I – On the Launching of
Projectiles and Explosives from Balloons
o Declaration II – On the Use of Projectiles
the Object of Which is the Diffusion of
Asphyxiating or Deleterious Gases
o Declaration III – On the Use of Bullets
Which Expand or Flatten Easily in the
Human Body
 1907 Hague Conventions had thirteen sections,
of which twelve were ratified and entered into
force, and two declarations:
o I – The Pacific Settlement of
International Disputes
o II – The Limitation of Employment of
Force for Recovery of Contract Debts
o III – The Opening of Hostilities
o IV – The Laws and Customs of War on
Land
o V – The Rights and Duties of Neutral
Powers and Persons in Case of War on
Land
o VI – The Status of Enemy Merchant Ships
at the Outbreak of Hostilities
o VII – The Conversion of Merchant Ships
into War-ships
o VIII – The Laying of Automatic Submarine
Contact Mines
o IX – Bombardment by Naval Forces in
Time of War
o X – Adaptation to Maritime War of the
Principles of the Geneva Convention
o XI – Certain Restrictions with Regard to
the Exercise of the Right of Capture in
Naval War
o XII – The Creation of an International
Prize Court [Not Ratified]*
o XIII – The Rights and Duties of Neutral
Powers in Naval War
o Declaration I – extending Declaration II
from the 1899 Conference to other types
of aircraft
o Declaration II – on the obligatory
arbitration
 1909 London Declaration concerning the Laws of
Naval War largely reiterated existing law,
although it showed greater regard to the rights
of neutral entities. Never went into effect.
 1922 The Washington Naval Treaty, also known
as the Five-Power Treaty (6 February).
 1923 Hague Draft Rules of Aerial Warfare. Never
adopted in a legally binding form.[28]
 1925 Geneva protocol for the Prohibition of the
Use in War of Asphyxiating, Poisonous or Other
Gases, and of Bacteriological Methods of
Warfare.[29]
 1927–1930 Greco-German arbitration tribunal.
 1928 Kellogg-Briand Pact (also known as the Pact
of Paris).
 1929 Geneva Convention, Relative to the
treatment of prisoners of war.
 1929 Geneva Convention on the amelioration of
the condition of the wounded and sick.
 1930 Treaty for the Limitation and Reduction of
Naval Armament (22 April).
 1935 Roerich Pact.
 1936 Second London Naval Treaty (25 March).
 1938 Amsterdam Draft Convention for the
Protection of Civilian Populations Against New
Engines of War. This convention was never
ratified.[30]
 1938 League of Nations declaration for the
"Protection of Civilian Populations Against
Bombing From the Air in Case of War."[31]
 1945 United Nations Charter (entered into force
on October 24, 1945).
 1946 Judgment of the International Military
Tribunal at Nuremberg.
 1947 Nuremberg Principles formulated under
UN General Assembly Resolution 177 21
November 1947.
 1948 United Nations Convention on the
Prevention and Punishment of the Crime of
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.