On 22nd July 2018, the International Criminal Court (ICC) celebrated the 20th anniversary of the Rome Statute, the treaty establishing the Court. Later in December 2018, the ICC held the Seventeenth Session of the Assembly of States Parties still under the theme of the twenty year anniversary. The Assembly of States Parties is the management oversight and legislative body of the Court made up of representatives of States, which have ratified or acceded to the Rome Statute. The Parties of these States come together at an annual gathering to discuss and consider the Court’s budget, status of contributions and audit report, activities of the Trust Fund for Victims, vote, and adoption of rules of procedure and evidence, and elements of crime.
The Court has often come under criticizm of targeting Africa; in the past years, most of the backlash has come from cases that involved current sitting heads of state, especially noting that judicial immunity of presidents is often provided within States’ Constitutions. It therefore does not come as a surprise for states to feel conflicted when the Court is investigating their heads of states. However, this goes back to the principle of complementarity, the idea that the Court’s jurisdiction is exercised along with the universal jurisdiction of the States Parties and therefore the Court’s jurisdiction only comes into play only where a member state is unable or unwilling to prosecute. It is therefore counterproductive for member states who sign up to the court’s statute to then turn around and seek to withdraw. The ICC reflects the world’s stand against impunity and also relies on member states cooperation for its smooth operation.
The work of the ICC is still on-going especially given the evolution of the Rome Statute and the current events that continue to evolve. Critical to consider is the state ratifications of the Crime of aggression. It is expected that once at least thirty member states have ratified and the ASP has made its decision, the Court’s jurisdiction over the crime is operationalised. To this extent, thirty-five states have ratified amendments to the Rome Statute on the crime of aggression and the ASP made its decision to activate the crime in 2017. It now remains a matter of time to observe how the Court will handle the crime of aggression given that only leaders, including heads of state, are legally capable of committing the crime and therefore to bear individual criminal responsibility. The crime of aggression is an addition to the three crimes; genocide, crimes against humanity, and war crimes, over with the court has jurisdiction.
The Court may exercise jurisdiction over the crime in the three traditional ways: by a member state referral, investigation by the prosecutor and Security Council referral, with the exception that non-member states, regardless of victim or aggressor status, are excluded from the Courts jurisdiction except in the case of a Security Council referral. Member states can still opt out of that jurisdiction despite previous ratification or acceptance but such action would still not affect the exception maintained under the Security Council referral. This is a very wise legal provision for the operation of the global peace and justice movement. It projects that the Security Council should have the power to step in where countries fail to act or act manifestly unjustly.
In conclusion, while criticism abounds it is important to keep in mind why we set up the Court in the first place. The global community is committed to global peace and social justice and it is only through committing to the institutions that we can continue to strive towards world peace. Indeed the Court can only operate and realise the goals for which it was set up in environment where its member states continue to strive for complementarity and full cooperation as the core principles enshrined in the Rome Statute for the Court’s successful operation.