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The International Criminal Court and the Rome Statute: HSC Legal Studies

Syllabus dot point

“Responses to world order: the role of courts and tribunals, including the International Criminal Court (ICC) and the Rome Statute of the International Criminal Court 1998, and their effectiveness in promoting world order”

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Quick answer

The ICC, created by the Rome Statute 1998 (in force 1 July 2002), tries individuals for genocide, crimes against humanity, war crimes and aggression. It has jurisdiction over crimes on the territory or by nationals of its 125 states parties, or where the Security Council refers a situation, and acts only when national courts will not (complementarity). It has convicted several leaders and in 2026 committed former Philippine President Rodrigo Duterte to trial, but it depends on state cooperation: warrants for Vladimir Putin and Benjamin Netanyahu remain unexecuted, the US has sanctioned ICC officials since 2025, and five states notified withdrawal in 2026.

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  1. What this dot point is asking
  2. The answer
  3. In one sentence
  4. Try this
  5. Exam-style questions
  6. Practice questions

What this dot point is asking

In the World Order option of the Legal Studies Stage 6 Syllabus (2009), students learn about the roles of the nation state, the United Nations, international instruments, courts and tribunals, intergovernmental organisations, NGOs, Australia's federal government and the media. You must be able to evaluate the effectiveness of legal and non-legal measures in resolving conflict and working towards world order and examine the role of sovereignty in assisting and impeding the resolution of world order issues.

The International Criminal Court is the most important international court for individual accountability, and it connects to the contemporary issues of rules regarding the conduct of hostilities (war crimes) and the principle of responsibility to protect (atrocity crimes). Markers repeatedly criticise students who confuse the ICC with the ICJ, so learn the difference.

The must-know spine

Rome Statute 1998: art 5 crimes, art 12 preconditions, art 13 triggers, art 15 proprio motu, art 17 complementarity, art 27 no official immunity, art 63 no trial in absentia, Part 9 cooperation. 125 states parties (2026). Cases: Lubanga (2012), Ntaganda (2019, 30 years), Ongwen (2021, 25 years), Abd-Al-Rahman (2025, 20 years), Duterte (charges confirmed 23 April 2026; trial scheduled to open 30 November 2026). Warrants: Putin (March 2023), Netanyahu and Gallant (November 2024), Taliban leaders (July 2025). Australia: International Criminal Court Act 2002 (Cth); Criminal Code Act 1995 (Cth) Div 268.

The answer

Why an international criminal court?

After the Nuremberg and Tokyo tribunals (1945 to 1948), no permanent court existed to try individuals for international crimes. The Security Council created ad hoc tribunals for the former Yugoslavia (ICTY, 1993) and Rwanda (ICTR, 1994), which showed that leaders could be tried but were limited to one conflict. The Rome Statute of the International Criminal Court was adopted on 17 July 1998 and entered into force on 1 July 2002. The Court sits in The Hague.

ICC and ICJ: do not confuse them

International Criminal Court International Court of Justice
Created by Rome Statute 1998 (independent treaty) UN Charter 1945 (principal UN judicial organ)
Parties Individuals (accused persons) States; advisory opinions for UN bodies
Jurisdiction Genocide, crimes against humanity, war crimes, aggression Disputes between consenting states; any question of international law
Recent examples Duterte committed to trial (2026) Advisory opinions on the Israeli occupation (19 July 2024) and climate change (23 July 2025)

The four core crimes (art 5)

  1. Genocide (art 6): acts such as killing members of a national, ethnic, racial or religious group with intent to destroy the group in whole or in part (drawn from the Genocide Convention 1948).
  2. Crimes against humanity (art 7): acts such as murder, extermination, enslavement, deportation, torture, sexual violence and persecution committed as part of a widespread or systematic attack against a civilian population.
  3. War crimes (art 8): grave breaches of the Geneva Conventions 1949 and other serious violations of the laws and customs of war, such as intentionally attacking civilians or hospitals, or unlawfully deporting civilians.
  4. Crime of aggression (art 8 bis): the planning or execution, by a political or military leader, of an act of aggression that manifestly violates the UN Charter. The Kampala amendments (2010) defined it, and the Court's jurisdiction was activated from 17 July 2018. Jurisdiction over aggression is narrower than over the other crimes: it does not extend to nationals of non-parties unless the Security Council refers the situation.

No official immunity. Official capacity as a head of state or government is no defence (art 27).

How jurisdiction works

Preconditions (art 12). The Court may act if the crime was committed on the territory of a state party, or by a national of a state party, or if a non-party lodges a declaration accepting jurisdiction (art 12(3)). Ukraine lodged such declarations in 2014 and 2015 and became the 125th state party from 1 January 2025.

Triggers (art 13).

  • State party referral (for example Uganda 2003, the Democratic Republic of Congo 2004, and a group of states referring Ukraine in 2022);
  • Security Council referral under Chapter VII of the UN Charter, which can reach non-parties: Darfur, Sudan (Resolution 1593, 2005) and Libya (Resolution 1970, 2011);
  • the Prosecutor acting on their own initiative (proprio motu) with authorisation from a Pre-Trial Chamber (art 15).

Complementarity (art 17). A case is inadmissible if a state with jurisdiction is genuinely investigating or prosecuting it, unless that state is unwilling or unable to do so. The ICC is a court of last resort that supports national courts rather than replacing them.

Procedure. The Prosecutor investigates; a Pre-Trial Chamber issues warrants and confirms charges; a Trial Chamber decides guilt; there is an Appeals Chamber. The accused must be present at trial (art 63). In the Kony case the Court held a confirmation of charges hearing in the suspect's absence (September 2025), and on 6 November 2025 it confirmed the charges while Joseph Kony remains at large; he cannot be tried unless he is arrested.

Key cases and situations to 2026

Convictions.

  • Thomas Lubanga (DRC): the first conviction, in 2012, for conscripting child soldiers; 14 years.
  • Bosco Ntaganda (DRC): war crimes and crimes against humanity; 30 years (2019).
  • Dominic Ongwen (Uganda, Lord's Resistance Army): 61 counts; 25 years (2021).
  • Ali Muhammad Ali Abd-Al-Rahman ("Ali Kushayb") (Darfur, Sudan): convicted on 6 October 2025 of 27 counts of war crimes and crimes against humanity, the Court's first Darfur conviction; sentenced to 20 years on 9 December 2025.
The Philippines: Rodrigo Duterte
The Philippines withdrew from the Rome Statute with effect from 17 March 2019, but the Court kept jurisdiction over crimes committed while it was a party. A warrant was issued for the former president over killings in the "war on drugs"; Philippine authorities arrested him on 11 March 2025 and surrendered him to the Court on 12 March 2025. His requests for interim release were refused (September 2025, upheld on appeal in November 2025). Pre-Trial Chamber I found him fit to take part in the pre-trial proceedings (26 January 2026), held the confirmation hearing on 23 to 27 February 2026, and on 23 April 2026 confirmed all three counts of crimes against humanity (murder and attempted murder between 1 November 2011 and 16 March 2019) and committed him to trial. Trial Chamber III has scheduled the trial to open on 30 November 2026; in mid-September 2026 its ruling on his fitness to stand trial was still pending, so check the current position before your exam.
Ukraine
In March 2023 the Court issued warrants for Vladimir Putin and Russia's children's rights commissioner, Maria Lvova-Belova, for the alleged unlawful deportation and transfer of children from occupied areas of Ukraine. Further warrants followed for senior Russian military commanders (2024). Russia is not a party and rejects the warrants. Mongolia, a state party, did not arrest Putin when he visited in September 2024, and the Court made a formal finding of non-compliance.
Palestine
Palestine joined in 2015. On 21 November 2024 Pre-Trial Chamber I issued warrants for Israeli Prime Minister Benjamin Netanyahu and former Defence Minister Yoav Gallant, alleging war crimes and crimes against humanity in Gaza, and for Hamas military commander Mohammed Deif (proceedings against him were terminated in February 2025 after his death was confirmed). Israel, which is not a party, rejects the Court's jurisdiction; its legal challenges had not resulted in the warrants being withdrawn as at September 2026. Hungary hosted Netanyahu in April 2025 without arresting him.
Afghanistan
In July 2025 the Court issued warrants for the Taliban's supreme leader and chief justice for the crime against humanity of gender persecution against women and girls.

Pressure on the Court

  • Sanctions. In 2025 the United States authorised sanctions against the ICC and designated the Prosecutor, several judges and other officials, in response to investigations involving US and Israeli nationals. It added the ICC President in August 2026, when the Court said nine of its 18 judges, both Deputy Prosecutors and the former Prosecutor had been sanctioned.
  • The Prosecutor. Prosecutor Karim Khan went on leave in May 2025 while allegations of sexual misconduct against him, which he denies, were investigated. He was suspended on 8 June 2026, and on 24 July 2026 the Assembly of States Parties found serious misconduct and removed him from office under article 46 of the Rome Statute. The two Deputy Prosecutors lead the Office of the Prosecutor.
  • Withdrawals. Burundi (2017) and the Philippines (2019) left. Hungary gave notice in June 2025 but revoked it on 29 May 2026, before it took effect, and remains a party. Burkina Faso, Mali and Niger notified withdrawal in June 2026, and Venezuela and Chad in July 2026; each withdrawal takes effect one year after notice, in 2027.

Australia's implementation

Australia signed the Rome Statute in 1998 and ratified it on 1 July 2002. The International Criminal Court (Consequential Amendments) Act 2002 (Cth) inserted the ICC crimes into Division 268 of the Criminal Code Act 1995 (Cth), and the International Criminal Court Act 2002 (Cth) governs cooperation, such as arrest and surrender. Australia can therefore exercise complementarity by prosecuting these crimes itself. Prosecutions of Division 268 offences require the Attorney-General's consent. Australia has also supported the Court diplomatically and financially and joined other states in referring the situation in Ukraine in 2022.

Evaluating the ICC's effectiveness

Criterion Strengths Weaknesses
Accountability Convictions of commanders; Duterte on trial; no immunity for leaders (art 27) Few convictions in more than 20 years; slow and expensive
Reach 125 states parties; Security Council referrals reach non-parties US, Russia, China, India and Israel outside; referrals blocked by veto (Syria, 2014)
Enforcement Warrants restrict travel and carry stigma; states have surrendered suspects No police force; Putin and Netanyahu warrants unexecuted; Mongolia and Hungary non-compliance
Legitimacy Investigations now span Europe, Asia and the Middle East; first gender persecution warrants Earlier African focus; sanctions, withdrawals and the Prosecutor's removal
Deterrence and norms Strengthens the rules on the conduct of hostilities and R2P Deterrence is hard to prove while atrocities continue

Judgement. The ICC is moderately effective. It has established that individuals, including heads of state, can be held criminally responsible, and the Duterte and Abd-Al-Rahman cases show real accountability where states cooperate. But because it depends on sovereign states to join, cooperate and arrest suspects, it is least effective against powerful states and their allies, and political pressure in 2025 and 2026 has tested its independence.

Common traps
Confusing the ICC with the ICJ
The ICC tries individuals; the ICJ decides disputes between states and is a UN organ. The ICC is not part of the UN.
Saying the ICC can try anyone anywhere
It needs a state party link, an article 12(3) declaration or a Security Council referral.
Treating a warrant as a conviction
Putin and Netanyahu have been charged in warrants, not tried or convicted.
Using outdated facts
The Netanyahu warrants were issued (November 2024), not just requested; Duterte is in ICC custody and was committed to trial (April 2026); Hungary remains a party.
Saying Australia cannot prosecute war crimes
Division 268 of the Criminal Code Act 1995 (Cth) allows domestic prosecution.

In one sentence

The ICC, created by the Rome Statute 1998, holds individuals accountable for genocide, crimes against humanity, war crimes and aggression when national courts will not, and cases such as Abd-Al-Rahman (2025) and Duterte (2026) show its value, but its dependence on state consent and cooperation, shown by unexecuted warrants, US sanctions and withdrawals, means it is only moderately effective in maintaining world order.

Try this

Q1. Explain the principle of complementarity. (3 marks)

  • What the marker wants. Article 17, the ICC as a court of last resort, "unwilling or unable", and why it respects sovereignty.

Q2. Explain how the Duterte case demonstrates both the strengths and limits of the ICC. (6 marks)

  • What the marker wants. Jurisdiction after withdrawal, surrender by the Philippines in 2025, confirmation of charges in 2026, and the dependence on domestic political cooperation.

Q3. Evaluate the effectiveness of the ICC in enforcing the rules regarding the conduct of hostilities. (8 marks)

  • What the marker wants. War crimes under art 8, convictions, the Ukraine and Gaza warrants, non-cooperation and sanctions, and a clear judgement.

Exam-style questions

Questions in the style of NESA exam questions on this dot point, each with a worked answer. They are written by ExamExplained unless tagged "Past paper"; the year shows the paper a question is modelled on.

2025 HSC Q31 (a)Past paper25 marks
'Non-compliance challenges the effectiveness of the law.' To what extent is this statement accurate in relation to world order?
Show worked answer →

Source: NESA, 2025 HSC Legal Studies examination, Section III, Question 31(a). NESA's marking guidelines list the nation state and state sovereignty, the nature of conflict, intergovernmental organisations and contemporary issues as content answers could include. Answer written by ExamExplained to the NESA marking criteria.

Thesis
The statement is largely accurate: because international law depends on state consent and cooperation, non-compliance by states, especially powerful ones, significantly weakens the ICC and the UN system, although the law still shapes behaviour and non-compliance carries costs.
The ICC depends on cooperation
It has no police force (Rome Statute Part 9). Omar al-Bashir travelled to several states parties after his 2009 warrant without arrest; Mongolia hosted Vladimir Putin in September 2024 despite the 2023 warrant, and Hungary hosted Benjamin Netanyahu in April 2025 despite the November 2024 warrant, both leading to formal findings of non-compliance.
Non-participation and pushback
The US, Russia, China, India and Israel are not parties. The US has sanctioned ICC officials since 2025, adding the Court's President in August 2026. Burkina Faso, Mali and Niger (June 2026) and Venezuela and Chad (July 2026) notified their withdrawal, each effective one year after notice.
The Security Council
The veto has blocked referrals of Syria (2014) and action on Ukraine (2022), and Russia's invasion of Ukraine breached article 2(4) of the UN Charter.
Counter-argument: compliance still happens
The Philippines surrendered Rodrigo Duterte in March 2025, his charges were confirmed in April 2026 and his trial is scheduled to open on 30 November 2026; Abd-Al-Rahman was convicted (October 2025) and sentenced to 20 years. Hungary reversed its withdrawal in May 2026 and 125 states remain parties. Warrants restrict travel and carry stigma.
Judgement
Non-compliance is the central weakness of world order law, but not a fatal one: the law is effective when states cooperate and least effective against powerful states and their allies.
Band guide (NESA 2025 criteria)
21-25: extensive understanding, informed judgement, integrated legislation, cases, media and instruments, sustained and cohesive. 16-20: sound judgement with relevant examples. 11-15: some judgement and examples. 6-10: statements. 1-5: general terms. Markers' comments noted weaker responses were weak on UN organs and the ICC or strayed into environmental or domestic issues.
Original5 marks
Outline the jurisdiction of the International Criminal Court.
Show worked answer →
Crimes
Genocide, crimes against humanity, war crimes and the crime of aggression (Rome Statute arts 5 to 8 bis), committed by individuals after 1 July 2002.
Preconditions (art 12)
The crime occurred on the territory of a state party, or the accused is a national of a state party, or a non-party accepts jurisdiction (art 12(3), as Ukraine did before joining).
Triggers (art 13)
Referral by a state party, referral by the UN Security Council under Chapter VII (which can extend jurisdiction to non-parties, such as Sudan and Libya), or the Prosecutor acting on their own initiative with Pre-Trial Chamber authorisation (art 15).
Complementarity (art 17)
A case is inadmissible if a state with jurisdiction is genuinely investigating or prosecuting it, unless the state is unwilling or unable.

Marking pattern (Original): 5 for crimes, preconditions, triggers and complementarity; 3 to 4 for most; 1 to 2 for general points.

Practice questions

Original practice questions graded from foundation to exam level, each with a full worked solution. Try them before revealing the solution.

foundation4 marks
Distinguish between the International Criminal Court and the International Court of Justice.
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The ICJ is the principal judicial organ of the UN (UN Charter art 92), established in 1945. It decides disputes between states that consent to its jurisdiction and gives advisory opinions (for example, on the Israeli occupation in July 2024 and on climate change in July 2025). The ICC is an independent treaty-based court created by the Rome Statute 1998 that tries individuals for genocide, crimes against humanity, war crimes and aggression. Both sit in The Hague.

Marking: 1 mark each for creation, parties before the court, jurisdiction and an example of each.

core6 marks
Explain how state sovereignty limits the effectiveness of the International Criminal Court.
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Consent
States choose whether to join: the US, Russia, China, India and Israel are not parties, and states can withdraw (Burundi 2017, the Philippines 2019; Burkina Faso, Mali, Niger, Venezuela and Chad notified in 2026).
Cooperation
The ICC relies on states to arrest and surrender suspects (Part 9). Al-Bashir, Putin (Mongolia, 2024) and Netanyahu (Hungary, 2025) travelled to states parties without arrest.
Complementarity
States have the first right to prosecute, which respects sovereignty but allows sham proceedings to be tested only after delay.
Political pressure
The US imposed sanctions on the Prosecutor and judges from 2025, and on the Court's President in 2026.

But sovereignty can assist: the Philippines surrendered Duterte in 2025, and states such as Ukraine accepted jurisdiction voluntarily.

Marking: 5 to 6 for several limits with specific examples and some balance; 3 to 4 for description.

exam25 marks
To what extent do courts and tribunals promote and maintain world order? (Original, modelled on the 2021 HSC Q32(a) topic.)
Show worked solution →
Thesis
Courts and tribunals promote world order by developing and enforcing international law, but they maintain it only to a limited extent because their jurisdiction depends on state consent and their judgments on state compliance.
ICC
Individual accountability for the gravest crimes; convictions (Lubanga 2012, Ntaganda 2019, Ongwen 2021, Abd-Al-Rahman 2025) and the Duterte trial show reach; but non-parties, non-cooperation and sanctions limit it.
ICJ
Advisory opinions on the Israeli occupation (2024) and climate change (2025) clarify law; provisional measures in Ukraine v Russia (2022) and South Africa v Israel (2024) were binding but compliance has been contested.
Ad hoc and hybrid tribunals
The ICTY (1993 to 2017) convicted Ratko Mladic and Radovan Karadzic; the ICTR convicted Jean-Paul Akayesu of genocide (1998). They showed accountability is possible when the Security Council acts.
Domestic courts
Complementarity and universal jurisdiction: Australia's Division 268 offences; German courts convicted Syrian officials for crimes against humanity (Koblenz, 2021 and 2022).
Judgement
Courts significantly promote world order by building norms and accountability, but maintain it only when states cooperate.
Band guide
21-25: informed judgement with integrated cases and instruments, sustained and cohesive. 16-20: sound judgement. 11-15: some judgement. 6-10: limited. 1-5: general. Markers' comments on 2021 noted students confused international courts with UN organs and gave thin case examples.

Practise this

Sources & how we know this

Based on the official NESA syllabus and published NESA past papers and marking guidelines. Not yet individually reviewed by a person; always check NESA and your school's materials for current rules.

ExamExplained