the operation and effectiveness of the International Criminal Court and the Rome Statute

What this dot point is asking

QCAA wants you to know what the ICC is, what crimes it prosecutes, how it gets jurisdiction, what it has achieved recently, and where it falls short. Expect this as an EA extended response.

The answer

Establishment

The International Criminal Court (ICC) was established by the Rome Statute of the International Criminal Court 1998 (in force 1 July 2002). It sits in The Hague. As at 2026, there are 124 states parties. 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 (Rome Statute article 5)

1. Genocide (article 6). Replicates the Genocide Convention 1948 definition. Acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.
2. Crimes against humanity (article 7). Acts including murder, extermination, enslavement, torture and sexual violence when committed as part of a widespread or systematic attack on a civilian population.
3. War crimes (article 8). Grave breaches of the Geneva Conventions 1949 and other serious violations of the laws of armed conflict.
4. Crime of aggression (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 (Rome Statute article 13)

The ICC's jurisdiction is triggered where:

• a state party refers a situation to the prosecutor (e.g. Uganda 2003, Democratic Republic of the Congo 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.

Territorial and personal jurisdiction (article 12)

The ICC has jurisdiction where the conduct occurred on the territory of a state party or where the accused is a national of a state party. A non-party state may accept jurisdiction by declaration. Ukraine accepted ICC jurisdiction ad hoc following the events of 2014 and 2022.

Complementarity (article 17)

The ICC is a court of last resort. 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.

Recent cases

Bosco Ntaganda

Convicted in 2019 of 18 counts of war crimes and crimes against humanity in the DRC. Sentenced to 30 years.

Dominic Ongwen

Convicted in February 2021 of 61 counts of war crimes and crimes against humanity (Lord's Resistance Army, Uganda). Sentenced to 25 years.

Russia / Ukraine

The ICC issued an arrest warrant for Vladimir Putin on 17 March 2023 over the alleged unlawful deportation of Ukrainian children. Russia is not a party to the Rome Statute; Ukraine accepted ad hoc jurisdiction under article 12(3). The warrant is the first against a sitting head of state of a UN Security Council permanent member.

Israel and Gaza

The ICC Prosecutor applied for arrest warrants in May 2024 against senior Israeli leaders and senior Hamas leaders in relation to the Gaza conflict.

The ICJ in parallel

The International Court of Justice has also been active in the same period. In South Africa v Israel (Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip), the ICJ issued a provisional measures order on 26 January 2024 finding it plausible that Israel's actions could constitute a breach of the Genocide Convention and ordering Israel to prevent acts of genocide and to enable humanitarian assistance.

The Gambia v Myanmar (filed 2019) before the ICJ remains in the merits phase. The court issued provisional measures in 2020 ordering Myanmar to prevent acts of genocide against the Rohingya.

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) Division 268.

Australian courts can now prosecute genocide, crimes against humanity and war crimes under Division 268 of the Criminal Code Act 1995 (Cth), exercising universal jurisdiction.

Effectiveness

Strengths. First permanent international criminal court. 124 states parties. Convictions of senior figures. Arrest warrants now reaching sitting heads of state of UN Security Council permanent members.

Weaknesses. Major powers (US, Russia, China, India, Israel, Iran) are not parties. The ICC has no police force; dependent on state cooperation. Investigations are slow. Allegations of African bias have shadowed the Court since its early years.