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 Appendix 6: The International Criminal Court

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The International Criminal Court Act 2002 came into force on 28 June 2002. Section 189 of that Act provides that the department must publish each year, as an appendix to its annual report, a report on the operation of the Act, the operations of the International Criminal Court (ICC) and the impact of the operations of the ICC on Australia's legal system.

Operation of the International Criminal Court Act

The International Criminal Court Act establishes mechanisms to facilitate Australia's compliance with its obligations under the Rome Statute of the International Criminal Court (the Rome Statute), including those relating to the provision of investigative assistance and the arrest and surrender of suspects.

The crimes over which the ICC can currently exercise jurisdiction—genocide, war crimes and crimes against humanity—are criminalised under Australia's domestic law and, in each instance, apply whether or not the alleged offence occurs in Australia and regardless of whether the alleged offender is an Australian national.

Under the Rome Statute a case will be inadmissible before the ICC if the relevant conduct is being investigated or prosecuted by national authorities, unless those national authorities are unwilling or genuinely unable to carry out the investigation or prosecution. Australian authorities can therefore investigate and prosecute crimes within the ICC's jurisdiction, allowing Australia to retain primary jurisdiction over such crimes that are alleged to have been committed in Australian territory or by Australian citizens. The Rome Statute does not affect the right of Australia to exercise primary jurisdiction over these crimes.

Operation of the International Criminal Court

The Rome Statute entered into force generally on 1 July 2002, and for Australia on 1 September 2002. At the end of the reporting year, 122 countries were States Parties to the Rome Statute. The ICC, which is based in The Hague in the Netherlands, is the first permanent international court capable of investigating and prosecuting the most serious crimes of international concern. Its jurisdiction is currently limited to the crimes of genocide, crimes against humanity and war crimes, and is confined to crimes committed after the Rome Statute entered into force.

Amendments to the Rome Statute to activate the ICC's jurisdiction over the crime of aggression were agreed by States Parties in 2010. The crime of aggression attaches individual criminal responsibility to certain state acts of aggression. An act of aggression is defined under the Rome Statute as 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 UN Charter. The jurisdiction of the ICC over the crime of aggression will commence following ratification by at least 30 parties and a further decision of the Assembly of States Parties to be taken after 1 January 2017.

During the year, Australia (the Department of Foreign Affairs and Trade) participated in the twelfth session of the Assembly of States Parties, held from 20–28 November 2013. At the twelfth session, the Assembly of States Parties adopted eight resolutions on:

  • the 2014 budget
  • permanent premises
  • cooperation with the court
  • complementarity
  • victims and reparations
  • the Independent Oversight Mechanism
  • amendment to the Rules of Procedure and Evidence
  • strengthening the ICC and the Assembly of States Parties.

The next session of the Assembly of States Parties will be held in New York from 8–17 December 2014.

During the year the ICC continued a number of judicial proceedings in respect of situations in each of the Democratic Republic of Congo, the Central African Republic, Libya, Cote d'Ivoire, Kenya, Uganda, the Sudan and Mali. These proceedings currently range from investigation to appeal stages and predominately address cases of war crimes and crimes against humanity. The prosecutor has also opened a preliminary examination into the situation in the Ukraine.

Impact on Australia's legal system

During the reporting year, the operations of the ICC had no discernible impact on Australia's legal system. The future impact of ICC operations is expected to depend on the number of active prosecutions and investigations undertaken as well as the number and nature of requests for assistance received by Australia.

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