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Appendix 4: The International Criminal Court

The International Criminal Court Act 2002 came into force on 28 June 2002. Under section 189 of that Act, the department must publish each year, as an appendix to its annual report for that year, a report on the operation of this 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 2002 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 exercise jurisdiction under the Rome Statute (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.

The ICC also has jurisdiction over a fourth crime, the crime of aggression, with effect from 17 July 2018. The ICC’s jurisdiction over the crime of aggression originates from amendments to the Rome Statute adopted in 2010. The crime of aggression is defined as 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’.

Australia has not ratified the 2010 amendments; as such the crime of aggression is not criminalised under Australia’s domestic law.

Under the Rome Statute a case will be inadmissible before the ICC if the relevant conduct is being investigated or prosecuted by a State with jurisdiction, unless the State is 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 alleged to have been committed in Australian territory or by Australian citizens.

Operation of the International Criminal Court

In July 2020, 123 countries were States Parties to the Rome Statute after Kiribati acceded on26 November 2019. The ICC’s jurisdiction is confined to crimes committed after the Rome Statute entered into force in 2002.

As at July 2020, the Office of the Prosecutor of the ICC (OTP) is conducting nine Preliminary Investigations and has 13 Situations under Investigation. The Court has dealt with 28 cases in total, the majority of which are ongoing.

Impact on Australia’s legal system

During 2019–20, the operations of the ICC had no discernible impact on Australia’s legal system. The future impact of ICC operations depends on the number of active prosecutions and investigations undertaken as well as the number and nature of requests for assistance received by Australia.