How Cases Reach the ICC

Three Paths to The Hague

The ICC can exercise jurisdiction through three trigger mechanisms. First, a state party can refer a situation on its own territory to the Prosecutor. Uganda, the Democratic Republic of Congo, Central African Republic, and Mali have all self-referred, typically when a government wants international help prosecuting rebels it cannot defeat or try domestically.

Second, the UN Security Council can refer a situation in any country, including non-member states. The Council referred Sudan (2005) and Libya (2011), though neither is an ICC member. However, Security Council referrals require no P5 veto, meaning the US, Russia, and China can block referrals of situations involving themselves or their allies.

Third, the Prosecutor can initiate an investigation proprio motu (on their own initiative) with the authorization of a Pre-Trial Chamber. This was the most controversial provision during negotiations, as the US feared it would allow a politicized prosecutor to target American officials. The proprio motu power has been used for investigations in Kenya, Cote d'Ivoire, Georgia, and Burundi.

Preconditions for Jurisdiction

Beyond the trigger mechanism, preconditions must be met. The ICC has jurisdiction over crimes committed on the territory of a state party or by a national of a state party. For Security Council referrals, no territorial or nationality link is needed. The crime must have occurred after July 1, 2002 (the Rome Statute's entry into force), or after the state became a party, whichever is later.

The complementarity principle adds another requirement: the ICC can only proceed if national courts are genuinely unwilling or unable to investigate and prosecute. This means the ICC must assess the national justice system's capacity and willingness before proceeding. If a state conducts genuine proceedings, even if they result in acquittal, the ICC cannot step in. This has led to creative strategies where states investigate minimally to claim they are handling the situation domestically.