• The Rome Statute requires that several criteria
exist in a particular case before an individual can
be prosecuted by the Court. The Statute contains
three jurisdictional requirements and three
admissibility requirements. All criteria must be
met for a case to proceed. The three jurisdictional
– subject-matter jurisdiction (what acts constitute
– territorial or personal jurisdiction (where the crimes
were committed or who committed them)
– temporal jurisdiction
• The process to establish the Court's jurisdiction may be "triggered" by any
one of three possible sources:
– a State party,
– the Security Council or
– a Prosecutor.
• It is then up to the Prosecutor acting ex proprio motu ("of his own motion"
so to speak) to initiate an investigation under the requirements of Article
15 of the Rome Statute. The procedure is slightly different when referred
by a State Party or the Security Council, in which cases the Prosecutor
does not need authorization of the Pre-Trial Chamber to initiate the
investigation. Where there is a reasonable basis to proceed, it is
mandatory for the Prosecutor to initiate an investigation. The factors listed
in Article 53 considered for reasonable basis include whether the case
would be admissible, and whether there are substantial reasons to believe
that an investigation would not serve the interests of justice (the latter
stipulates balancing against the gravity of the crime and the interests of
4. Core crimes
• Art. 5 Rome Statute
– crimes against humanity
– war crimes
– crime of aggression
• Genocide, as defined in Article 6 of the Rome Statute, means any of
the following acts committed with intent to destroy, in whole or in
part, a national, ethnical, racial or religious group, as such:
– Killing member of the group;
– Causing serious bodily or mental harm to members of the group;
– Deliberately inflicting on the group conditions of life calculated to
bring about its physical destruction in whole or in part;
– Imposing measures intended to prevent births within the group;
– Forcibly transferring children of the group to another group;
– The crime of genocide is comprised in two subjective elements:
– A general subjective element that must cover any genocidal act
provided in article 6 a) to e).
– Dolus specialis or mens rea – a specific intent to destroy a particular
group in whole or in part.
6. • in part –
– the part targeted must be significant enough to have an
impact on the group as a whole. The area of the
perpetrator’s activity is to be considered; numbers are not
evaluated in absolute terms, but in relation to the overall
size of the entire group.
– Both genocide and persecution are crimes perpetrated
against people that belong to a certain group. But while in
the case of persecution the discriminatory intent can take
numerous forms, in the case of genocide that intent must
be accompanied with the specific intent to destroy.
– Persecution can escalate to genocide in the form of willful
and deliberate attacks to destroy a group. It always has to
be charged connected with other acts of the list
7. Crimes against humanity
• Article 7 of the Rome Statute defines crimes against humanity as follows:
• Some contextual elements, or the chapeau, have to be fulfilled
– Attack directed against civilian population - the term ‘civilian population’
refers to persons who are civilians, as opposed to members of armed forces
and other legitimate combatants – it excludes military targets.
– Widespread or systematic - Widespread has been explained by the
jurisprudence as being an attack carried out over a large geographical area or
an attack in a small geographical area but directed against a large number of
people. The term systematic has been understood as an organised plan that
follows a regular pattern and results in a continuous commission of acts.
– Pursuant to or in furtherance of a state or organizational policy - An attack that
is planned and organized, as opposed to spontaneous and isolated acts of
violence. It does not need to be declared or stated expressly and precisely.
– Knowledge (mens rea) – the perpetrator must act with knowledge of the
attack directed against the civilian population. Mental element under Article
30 – awareness that a circumstance exists or that a consequence will occur in
the ordinary course of events.
8. • War Crime
– A War Crime has to be committed during an
armed conflict. Conducts which satisfy the
objective elements of a War Crime under Article 8
may also satisfy the objective elements of article
7. Thus, the suspects may be tried under Article 7
and under Article 8 simultaneously (the
prosecutor may cumulatively charge).
9. War crimes
• War crimes, as defined in Article 8 of the Rome Statute, include
grave breaches of the Geneva Convention and other serious
violations of the laws and customs applicable in international
armed conflicts and non-international armed conflicts, when they
are committed as part of a plan or policy or on a large scale. The
Court has jurisdiction over these crimes where they are a part of a
large-scale commission of such crimes.
• War crimes include, among others:
– Taking of hostages
– Intentionally conducting attacks against civilians
– Rape, sexual abuse and forced pregnancy
– Conscripting or enlisting children under the age of 15 into armed
forces or using them to participate in hostile activities.
10. • For the purpose of prosecuting war crimes, it is important to
differentiate between international armed-conflicts (violence
between states) and non-international armed conflicts
(violence between armed groups). This is relevant to
determine which provision in Article 8 will be applied - n2 b)
or n2 c) or e). The list on the last ones is much shorter.
11. Crime of aggression
• The crime of aggression is defined in article 8 bis of the Rome
Statute. In 2010, the first-ever Review Conference of the Rome
Statute held in Kampala, Uganda, adopted by consensus
amendments to the Statute, which include a definition of the crime
of aggression and a regime establishing how the Court will exercise
jurisdiction to investigate and prosecute individuals for this crime.
• The crime of aggression means the planning, preparation, initiation
or execution of an act of using armed force by a State against the
sovereignty, territorial integrity or political independence of
• It includes, among other things, invasion, military occupation, and
annexation by the use of force, blockade by the ports or coasts, if it
is considered being, by its character, gravity and scale, a manifest
violation of the Charter of the United Nations.
12. • Who are the perpetrators?
– This crime applies only to political or military leaders, not combatants or
soldiers: the perpetrator has to be a person who is in a position to effectively
exercise control over or to direct the political or military action of a state.
– The Court also has to prove that the perpetrator was involved in the planning,
preparation, initiation or execution of the state’s act of aggression.
– The article also contains the threshold requirement that the act of aggression
must constitute a manifest violation of the Charter of the United Nations.
– This crime has a unique jurisdictional regime, which cannot be triggered in the
same manner as with other crimes of the Statute. The Court may exercise
jurisdiction over the crime either by state referral (proprio motu) or by UN
Security Council referral.
• For the Court to start actively exercising jurisdiction over the crime of
aggression, two conditions have to be verified:
– The amendments must have entered into force in at least thirty state parties
– State parties must activate the jurisdiction through an additional decision to
take place 1 January 2017, by a majority of 2/3