The International Criminal Court (ICC) was established by the 1998 Rome Statute of the International Criminal Court and entered into force on 1 July 2002. It is a permanent court composed of 18 independent judges and it has its headquarters in The Hague in The Netherlands. The function of the ICC is to establish individual criminal responsibility for acts of genocide, crimes against humanity and crimes of war.

The ICC does not replace national courts. It works complementary to national courts. The Court will only investigate and prosecute if a State is unwilling or unable to genuinely prosecute. The basis of exercising jurisdiction is that the “territorial state” (the State on whose territory the situation which is being investigated has taken or is taking place), or the State of nationality (the State whose nationality is possessed by the person who is being investigated) must be a party to the Statute.

The ICC may exercise jurisdiction over acts of genocide, crimes against humanity and crimes of war in three particular instances:

• <!--[if !supportLists]--><!--[endif]-->When the State party has referred the case to the Court;
• <!--[if !supportLists]-->When the Security Council has referred the case to the Court;
• <!--[if !supportLists]-->When the prosecutor has decided to investigate a case on his or her own decision and on the basis of information received.

When a case has been referred to by the Security Council it does not matter whether the State is part to the Rome Statute. Also a State can accept the jurisdiction of the Court in particular cases even though the State is not party to the Rome Statute.

The ICC establishes jurisdiction over genocide, crimes of war and crimes against humanity. In the Rome Statute enforced disappearances are defined as a crime against humanity. The Rome Statute defines enforced disappearances as a crime against humanity. The definition can be found in Art.7 Par.2 under i, and reads as follows:

“‘Enforced disappearance of persons’ means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time.”

It is important to note that this definition is different from the definition in human rights law (the definition in the Convention Against Enforced Disappearances). This is because the Rome Statute establishes jurisdiction over enforced disappearances in order to establish individual criminal responsibility (while the focus of human rights law is to establish state responsibility) and it focuses on enforced disappearances as a crime against humanity.

While this does not elude all of the possible shortcomings of the definition it places this definition in a particular context, namely that of international criminal law. Many NGO’s and family member organisations have criticised this definition for its vagueness and the addition of a number of elements of the crime (mainly the element of intent).

The ICC is a Court of last resort. It will not act if a case is being or has been investigated or prosecuted by a national judicial system, unless the national proceedings are not genuine.

The Office of the Prosecutor is one of the four organs of the International Criminal Court. It is responsible for receiving referrals (denounces) and any substantiated information on crimes within the jurisdiction of the ICC. It also examines the referrals and conducts investigations and prosecutions before the ICC. If there is a widespread and systematic practice of enforced disappearances in a country, it is essential to submit information to the ICC Office of the Prosecutor.