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What Is International Justice and How Does the International Criminal Court Work?

In 2002, the the United Nations established the International Criminal Court (ICC) to investigate and try individuals who commit any of four crimes, including war crimes or crimes against humanity. The court was formed based on an international treaty called the Rome Statute.

The Rome Statute names specific crimes against humanity and war crimes. If an individual commits any of these crimes, that person can be indicted, tried, and sentenced to prison by the ICC. So far, the ICC has opened investigations into four situations: Northern Uganda, the Democratic Republic of the Congo, the Central African Republic and Darfur. The Court has come under some criticism for focusing only on countries in Africa while not investigating a single country in Asia.

What Constitutes Crimes Under the Rome Statute?

The Rome Statute lists specific crimes that qualify as war crimes against humanity and/or war crimes. The ICC provides a document called Elements of the Crimes that summarize both war crimes and crimes against humanity. In this list of crimes is included the recruitment of child soldiers, forcing refugees to flee, rape, sexual slavery, and torture. In total, Than Shwe’s military is believed to have violated up to 16 separate laws prohibiting war crimes and crimes against humanity.

How Does the International Criminal Court Start a Case?

There are three ways in which a country can be referred to the ICC. First, the prosecutor of the international criminal court can initiate investigations on any country which is a signatory to the Rome Statute. Second, a country that ratified the Rome Statute can ask the ICC prosecutor to investigate and prosecute cases within its borders. Third, if a country is not a signatory, the UN Security Council can give the ICC prosecutor jurisdiction over crimes that take place in a particular country – this is what is mean by “referring” a country to the International Criminal Court.

Since Burma is not party to the Rome Statute, the ICC prosecutor can not on his own initiate an investigation on Burma. The UN Security Council must vote to give the prosecutor jurisdiction. This means that at least 9 of the 15 countries on the Council must vote “yes” and additionally there can be no veto from the five permanent members of the Council – Russia, China, US, France, and the UK.

Referrals in Practice

In practice, before the UNSC refers any country to the ICC, it is likely to vote to create a Commission of Inquiry to study the situation to determine if the crimes are being committed and if a system of impunity is present and make a recommendation to the UNSC. For example, before the UNSC referred the situation in Darfur to the International Criminal Court, it asked the UN Secretary General to carry out a “Commission of Inquiry” to study the situation there and report back within 6 months. The Commission on Sudan determined war crimes and crimes against humanity but not genocide were being committed and that a system of impunity was present. The Commission then recommended that the UN Security Council refer Sudan to the ICC, which the UN Security Council then did.