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NSWLegal StudiesSyllabus dot point

How does the International Criminal Court prosecute the most serious international crimes?

Investigate the role of the International Criminal Court (ICC) and the Rome Statute of the International Criminal Court 1998

A focused answer to the International Criminal Court. Covers the Rome Statute of the International Criminal Court 1998, the four core crimes, the jurisdictional triggers, the principle of complementarity, recent cases including the arrest warrant for Vladimir Putin, and Australia's implementation.

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What this dot point is asking

NESA wants you to know what the ICC is, what crimes it prosecutes, how it gets jurisdiction, what it has achieved, and where it falls short. Expect this in Section IV as a 15-20 mark extended response component.

The answer

Establishment

The International Criminal Court (ICC) was established by the Rome Statute of the International Criminal Court 1998, which entered into force on 1 July 2002 after 60 ratifications. The ICC sits in The Hague. As at 2026, there are 124 states parties to the Rome Statute. Notable non-parties include the United States, Russia, China, India, Israel and Iran.

The ICC is distinct from the International Court of Justice (which hears disputes between states). The ICC has jurisdiction over individuals.

The four core crimes

Article 5 of the Rome Statute of the International Criminal Court 1998 lists the four core crimes:

  1. Genocide. Defined in article 6 (replicating article II of the Genocide Convention 1948). Acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.
  2. Crimes against humanity. Defined in article 7. Acts including murder, extermination, enslavement, deportation, torture and sexual violence when committed as part of a widespread or systematic attack directed against any civilian population.
  3. War crimes. Defined in article 8. Grave breaches of the Geneva Conventions 1949 and other serious violations of the laws and customs of armed conflict.
  4. Crime of aggression. Defined in article 8 bis (added by the 2010 Kampala amendments, in force from 17 July 2018). The use of armed force by a state against the sovereignty, territorial integrity or political independence of another state.

Jurisdictional triggers

The ICC's jurisdiction is triggered (article 13) where:

  • a state party refers a situation to the prosecutor (e.g. Uganda 2003, DRC 2004);
  • the UN Security Council refers a situation under Chapter VII (e.g. Sudan 2005 by Resolution 1593, Libya 2011 by Resolution 1970);
  • the prosecutor initiates an investigation proprio motu, with authorisation from the Pre-Trial Chamber (article 15).

The ICC's territorial and personal jurisdiction (article 12) extends to:

  • conduct on the territory of a state party;
  • conduct by a national of a state party;
  • conduct in a state that has accepted jurisdiction.

Complementarity

The ICC is a court of last resort. Article 17 sets out the principle of complementarity: a case is inadmissible if it is being or has been genuinely investigated or prosecuted by a state with jurisdiction, unless that state is unwilling or unable to prosecute. The ICC supplements national criminal justice systems rather than replacing them.

Recent cases

Bosco Ntaganda
Convicted of war crimes and crimes against humanity in the DRC; sentenced to 30 years in 2019.
Dominic Ongwen
Commander in the Lord's Resistance Army (Uganda); convicted of 61 counts of war crimes and crimes against humanity in February 2021; sentenced to 25 years.
Russia / Ukraine
The ICC issued an arrest warrant for Vladimir Putin on 17 March 2023 in relation to the alleged unlawful deportation of Ukrainian children. Russia is not a party to the Rome Statute; Ukraine accepted ad hoc ICC jurisdiction over its territory under article 12(3). The warrant is the first against a sitting head of state of a UN Security Council permanent member.
Israel / Hamas
The ICC Prosecutor applied for arrest warrants in May 2024 against senior Israeli leaders and senior Hamas leaders in relation to the Gaza conflict.

Australia's implementation

Australia signed the Rome Statute on 9 December 1998 and ratified on 1 July 2002. Australia implemented its obligations through:

  • the International Criminal Court Act 2002 (Cth);
  • the International Criminal Court (Consequential Amendments) Act 2002 (Cth), which inserted the core ICC crimes into the Criminal Code Act 1995 (Cth) (Divisions 268).

This means Australia can prosecute genocide, crimes against humanity and war crimes domestically, exercising universal jurisdiction.

Effectiveness

Strengths.

  • The ICC is a permanent international criminal court, the first of its kind.
  • 124 states parties.
  • Several convictions of senior figures including former presidents and rebel commanders.
  • Now reaching sitting heads of state of UN Security Council permanent members.

Weaknesses.

  • Major powers including the US, Russia, China, India, Israel and Iran are not parties.
  • The ICC has no police force and depends on state cooperation to execute warrants. Sudan's former president Omar al-Bashir, indicted in 2009, travelled to several states parties without being arrested.
  • Investigations are slow; complex cases take years.
  • Allegations of African bias (early cases concentrated in Africa), though the Court is now investigating in multiple regions.

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