Israel, the International Criminal Court & Universal Jurisdiction

The Statute of the ICC

Excerpts from the Statute of the International Criminal Court

Article 5

Crimes within the jurisdiction of the Court


1. The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes:
(a) The crime of genocide;
(b) Crimes against humanity;
(c) War crimes;
(d) The crime of aggression.
2. The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations...

Article 8

War crimes


1. The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.

2. For the purpose of this Statute, 'war crimes' means:
...
(b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:
(i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;
(ii) Intentionally directing attacks against civilian objects, that is, objects which are not military objectives;
(iii) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict;
(iv) Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated;
(v) Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives;
...
(viii) The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory;
(ix) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded;
...
(xx) Employing weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict, provided that such weapons, projectiles and material and methods of warfare are the subject of a comprehensive prohibition and are included in an annex to this Statute, by an amendment in accordance with the relevant provisions set forth in articles 121 and 123;
...
(xxiii) Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations;
(xxiv) Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law;...
Article 59

Arrest proceedings in the custodial State


1. A State Party which has received a request for provisional arrest or for arrest and surrender shall immediately take steps to arrest the person in question in accordance with its laws and the provisions of Part 9.

2. A person arrested shall be brought promptly before the competent judicial authority in the custodial State which shall determine, in accordance with the law of that State, that:
(a) The warrant applies to that person;
(b) The person has been arrested in accordance with the proper process; and
(c) The person's rights have been respected.
3. The person arrested shall have the right to apply to the competent authority in the custodial State for interim release pending surrender.

4. In reaching a decision on any such application, the competent authority in the custodial State shall consider whether, given the gravity of the alleged crimes, there are urgent and exceptional circumstances to justify interim release and whether necessary safeguards exist to ensure that the custodial State can fulfil its duty to surrender the person to the Court. It shall not be open to the competent authority of the custodial State to consider whether the warrant of arrest was properly issued in accordance with article 58, paragraph 1 (a) and (b)...

Article 8 bis3, (Amendments to the Rome Statute, June 11, 2010)

Crime of aggression


1. For the purpose of this Statute, 'crime of aggression' means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.

2. For the purpose of paragraph 1, 'act of aggression' means the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations. Any of the following acts, regardless of a declaration of war, shall, in accordance with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, qualify as an act of aggression:
a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof;
b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State;
c) The blockade of the ports or coasts of a State by the armed forces of another State;
d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State;
e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement;
f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State;
g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.
Article 15 bis5

Exercise of jurisdiction over the crime of aggression (State referral, proprio motu)


... 2. The Court may exercise jurisdiction only with respect to crimes of aggression committed one year after the ratification or acceptance of the amendments by thirty States Parties.
3. The Court shall exercise jurisdiction over the crime of aggression in accordance with this article, subject to a decision to be taken after 1 January 2017 by the same majority of States Parties as is required for the adoption of an amendment to the Statute. [two-thirds]
...
5. In respect of a State that is not a party to this Statute, the Court shall not exercise its jurisdiction over the crime of aggression when committed by that State's nationals or on its territory.

Recent Developments at the ICC

  • International Criminal Court Resolution 'Strengthening the International Criminal Court and the Assembly of States Parties,' ICC-ASP/15/Res.5, November 24, 2016
  • International Criminal Court Resolution 'Programme budget for 2017, scale of assessments for the apportionment of expenses and financing appropriations for 2017,' ICC-ASP/15/Res.1, November 24, 2016
  • Statement by the ICC Prosecutor at the Opening of the 15th Session of the Assembly of States Parties to the Rome Statute of the International Criminal Court, November 16, 2016
  • Report of the International Criminal Court to the UN General Assembly for 2015/2016, A/71/342, September 16, 2016
  • Office of the Prosecutor: Policy paper on case selection and prioritisation, International Criminal Court, September 15, 2016
  • Report on the activities of the International Criminal Court, ICC-ASP/15/3, September 14, 2016
  • Proposed Programme Budget for 2017 of the International Criminal Court, ICC-ASP/15/10, August 17, 2016
  • Proposed Programme Budget for 2017 of the International Criminal Court, Executive Summary, ICC-ASP/15/INF.2, July 29, 2016
  • International Criminal Court Resolution 'Strengthening the International Criminal Court and the Assembly of States Parties,' ICC-ASP/14/Res.4, November 26, 2015
  • International Criminal Court Resolution 'Programme budget for 2016, scale of assessments for the apportionment of expenses and financing appropriations for 2016,' ICC-ASP/14/Res.1, November 26, 2015
  • "Enhancing the Court's Efficiency and Effectiveness - A Top Priority for ICC Officials," International Criminal Court Press Release, November 24, 2015
  • Statement by the ICC Prosecutor at the Opening of the 14th Session of the Assembly of States Parties to the Rome Statute of the International Criminal Court, November 18, 2015
  • Report on the activities of the International Criminal Court, ICC-ASP/14/29, November 13, 2015
  • Proposed Programme Budget for 2016 of the International Criminal Court, ICC-ASP/14/10, September 2, 2015
  • Eleventh Report of the International Criminal Court to the UN General Assembly for 2014/15, A/70/350, August 28, 2015
  • Office of the ICC Prosecutor: Strategic plan 2016-2018, ICC-ASP/14/22, August 21, 2015
  • Report on activities and programme performance of the International Criminal Court for the year 2014, ICC-ASP/14/8, May 4, 2015