International Criminal Court

The establishment of the International Criminal Court (ICC) was arguably one of the most significant achievements of the twentieth century. The ICC Statute was adopted at a Diplomatic Conference held in Rome during June and July of 1998, and entered into effect on July 1, 2002. With ninety-two state parties, and many more signatories, the ICC has received substantial support from the international community and has begun work in its temporary quarters at The Hague. Yet its ultimate success is uncertain, particularly given the strong U.S. opposition to the Court.

Evolution of the International Criminal Court Statute

In 1899 and 1907 Tsar Nicholas II proposed to the governments of the world that they attend two peace conferences in The Hague. The first resulted in the adoption of three conventions; these related to the peaceful settlement of disputes (which established the Permanent Court of Arbitration), the laws and customs of war on land, and maritime warfare. The second conference, during which construction of the Peace Palace began, concluded successfully with the adoption of thirteen Conventions (three of which revised the 1899 Conventions). These included Convention (IV), Respecting the Laws and Customs of War on Land.

The treaties signed at The Hague were silent as to whether or not particular uses of force were lawful (the jus ad bellum). They regulated only the means an actor could employ in achieving his military objectives once the decision to use force had already been made (the jus in bello). The two Hague Peace Conferences were met with self-congratulation by the parties involved. However, these feelings quickly dissipated, and by the end of World War I, the "world lay breathless and ashamed" by the devastation of a war characterized by bitter savagery and monstrous slaughter.

This led to the idea that some criminal liability might be imposed for acts of war beyond the pale. Over American objections, the Commission on the Responsibility of the Authors of the War and on the Enforcement of Penalties proposed the formation of an international "high tribunal" for the trial of "all enemy persons alleged to have been guilty of offenses against the laws and customs of war and the laws of humanity." After difficult negotiations, Article 227 of the Treaty of Versailles provided for a "special tribunal" that would try the German Emperor, William II of Hohenzollern, for the "supreme offence against international morality and the sanctity of treaties." The trial never occurred, however, as the Netherlands refused to extradite William II.

The idea of an international criminal court was revived after the assassination of King Alexander of Yugoslavia in 1934, and in 1937 a convention was opened for signature on the creation of a court that would try persons accused of offenses established in the Convention for the Prevention and Punishment of Terrorism. Because the proposed court's jurisdiction was so limited and relatively well defined, it avoided many of the objections that earlier proposals had raised. Nevertheless, the convention was signed by only thirteen nations, and never entered into force.

The Nuremberg and Tokyo Trials

The atrocities of World War II rekindled interest in the establishment of a permanent international criminal court. Although a variety of proposals ensued, the model statutes proposed by jurists gave way to the pressure of political events, and the Charters of the Nuremberg and Tokyo tribunals took their place. Much less weight is generally accorded to the decisions of the International Military Tribunal for the Far East than to those of the IMT at Nuremberg for a variety of reasons, including the perception that the Tokyo proceedings were substantially unfair to many of the defendants. Nuremberg, however, was clearly a watershed event both for the ICC and for international law more generally.

Although the criminal procedures employed by the IMT fell considerably short of modern standards, the trials were generally considered to have been conducted in a manner that was fair to the defendants. It is indisputable, however, that the vanquished were tried by judges representing only the nationalities of the victors, and there is little doubt that the Tribunal was influenced by the political and psychological stress of the war.

In issuing its judgment after nine months of trial, the Tribunal addressed many of the defendants' objections to the Tribunal's jurisdiction and the law it was asked to apply. First, the Tribunal rejected the defendants' arguments based on state sovereignty, holding that individuals, including heads of state, and those acting under orders, could be criminally responsible under international law. Second, the Tribunal affirmed the primacy of international law over national law: "[T]he very essence of the Charter is that individuals have international duties which transcend the national obligations of obedience imposed by the individual State." Finally, by holding that individuals may be liable for initiating a war, as well as for the means used in conducting it, the IMT established the wrongfulness of aggression.

The Postwar Period

Nuremberg helped overcome objections to an international criminal court based on sovereignty. But the use of ad hoc or special tribunals raises several problems. First, no matter how "fair" the actual trial proceedings, such tribunals give the impression of arbitrary and selective prosecution. Second, there is the problem of delay. Ad hoc tribunals take time to establish—time during which evidence may be destroyed and additional lives lost. Finally, and perhaps most critically, ad hoc tribunals fail to build the kinds of institutional memory and competence that are the hallmark of a permanent court. Each time prosecutors must be found, staff must be assembled and trained, and judges must be procured who are willing and able to leave their existing commitments, and who may have little or no experience in international criminal law. These problems might not only damage the ad hoc court's ability to conduct an effective prosecution and trial, but could also adversely affect the rights of the accused.

Thus it is not surprising that immediately after World War II, the United Nations considered the establishment of a permanent international criminal court. The subject was raised in connection with the formulation and adoption of the Genocide Convention in 1948. Yet although the Genocide Convention was adopted relatively quickly, efforts to create the international criminal tribunal envisaged in Article VI of the Convention failed. Indeed, the reference to an international penal tribunal found in Article VI had been deleted from earlier drafts, and was restored only after extensive debate.

In a resolution accompanying the adoption of the Genocide Convention, the General Assembly invited the newly established International Law Commission (ILC), along with its work on the codification of international criminal law, to "study the desirability and possibility of establishing an international judicial organ for the trial of persons charged with genocide or other crimes over which jurisdiction will be conferred upon that organ by international conventions." The General Assembly also requested that the Commission consider the possibility that this might be accomplished through the creation of a Criminal Chamber of the International Court of Justice.

Thus instructed, the ILC embarked upon what would prove to be a long and frustrating endeavor. Indeed, it was not until 1989 that the question was actively renewed by the General Assembly, following a Resolution on the subject introduced by a coalition of sixteen Caribbean and Latin American nations led by Trinidad and Tobago.

Adoption of the Rome Statute for the International Criminal Court, July 17, 1998

Following a 1994 report of the International Law Commission on the question of an international court, the General Assembly granted the ILC a mandate to elaborate a draft statute "as a matter of priority." The project gained momentum after the creation of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in 1993 by the Security Council. The adoption of the ICTY's Statute not only suggested that a permanent court was needed, but that governments, including the United States, might be willing to support its establishment, at least under certain circumstances. The creation of the International Criminal Tribunal for Rwanda (ICTR) shortly thereafter suggested the need for an international institution that could address serious violations of international humanitarian law.

The International Law Commission considered two draft statutes for the ICC before finally adopting a 60-article version in 1994. Aware of the politics involved, and perhaps wary of having its work shelved, the Commission took no position on some of the more difficult questions involved in drafting the Statute (such as the definitions of crimes and financing of the Court), and deferred to state sovereignty on other issues (such as jurisdictional regimes and organizational structure.)

The ILC envisaged a Court with jurisdiction over treaty crimes and violations of international humanitarian law, that would act only when cases were submitted to it, and was, in all instances except for Security Council referrals, completely dependent on state consent for its operation. The basic premise upon which the ILC proceeded was that the court should "complement" national prosecutions, rather than replace them, and that it should try only those accused of the most serious violations of international criminal law, in cases in which national trials would not occur, or would be ineffective.

The ILC sent the Draft Statute to the United Nations' General Assembly for consideration, and the General Assembly then established an ad hoc committee, which met twice in 1995 to review the Commission's report. The ad hoc committee, ably chaired by Adriaan Bos, the legal advisor of the Ministry of Foreign Affairs for the Netherlands, rendered its report in late 1995. This report became the basis for the work of the Preparatory Committee established by the General Assembly to consider the Statute. While the Ad Hoc Committee focused on the general question of whether the establishment of the Court was a viable possibility, the Preparatory Committee turned its attention to the text itself. The Preparatory Committee, open to all members of the United Nations as well as members of specialized agencies, was charged with "preparing a widely acceptable consolidated text of a convention for an international criminal court as a next step towards consideration by a conference of plenipotentiaries." In 1996 and 1997, the Preparatory Committee held six official sessions, each lasting approximately two weeks, and several intersessional sessions. Finally, in April 1998 it issued a consolidated text of a draft Statute for the consideration of the Diplomatic Conference later that summer.

The Diplomatic Conference to consider the April Draft Statute was held in Rome from June 15 to July 17, 1998. Five weeks of difficult negotiations culminated in a 128-article Statute that reflected nearly a century of work. The Court's Statute was adopted after five intense weeks of negotiations in a vote of 120 to 7, with 21 countries abstaining. The United States voted against the Statute, as did six other countries, although because the vote was unrecorded, their identities are not confirmed.

The Jurisdiction of the Court

Under Article 11 of the Statute, the Court's jurisdiction is limited to crimes committed after the Statute enters into force. This precludes the transfer of cases from the ICTY and ICTR to the Court, an option that had been considered earlier in the Statute's negotiation. The geographic scope of the Court's jurisdiction varies depending on the mechanism by which the case comes to the Court. If the Security Council refers the matter, jurisdiction extends to the territory of every state in the world, whether or not the state in question is a party to the Statute. If the matter is referred by a state party or initiated by the Court's prosecutor, however, the Court's jurisdiction is more restricted. In such instances, jurisdiction requires a state's consent and must concern acts committed in the territory of the consenting state, or an accused who is a national of the consenting state. Only natural persons over eighteen years of age may be accused, thereby excluding organizations or states.

The Rome Statute extends the Court's subject matter jurisdiction to four crimes: genocide, crimes against humanity, war crimes, and aggression. A state may opt out of the war crimes jurisdiction of the Court as regards its nationals or crimes committed on its territory for seven years after the Statute enters into force for that state. Further, the Statute does not define aggression. Article 5(2) provides that the Court can exercise jurisdiction over that crime only after the state's parties have defined it.

The ICC's jurisdiction as ultimately constituted is narrower than the jurisdiction originally contemplated by the ILC Draft Statute, which provided that the Court would also be able to hear cases involving specific crime created by treaties, such as terrorism. Recognizing, however, that treaty crimes present serious problems for the international community, and that some countries felt particularly strongly about their inclusion, Resolution E, which was adopted by the Diplomatic Conference in its Final Act, provides that the issues of terrorism and drug crimes should be taken up at a review conference, with a view to their ultimate inclusion in the jurisdiction of the Court.

Lodging a Complaint with the Court

Under the 1994 ILC Draft Statute, only states and the Security Council could lodge complaints with the Court. The Rome Statute, however, also permits the prosecutor to bring cases before the Court on his own initiative. The ILC Draft originally conceived of four separate jurisdictional hurdles that would be prerequisites to the exercise of the Court's jurisdiction in any particular case, and the combination of these four jurisdictional predicates would have rendered the Court powerless over most international crimes, even those of extreme gravity, unless the Security Council referred a matter to the Court. To many observers, this would have been unsatisfactory, for often the Security Council cannot reach agreement as to the proper disposition of a particular situation, and each of the five permanent members has the right to veto action. Moreover, most states are not members of the Council.

The Rome Statute responds to many of these concerns. The Statute requires all states parties to accept the Court's inherent jurisdiction over all crimes in Article 5, subject to the seven year opt-out for war crimes. It does not permit reservations with respect to the Court's jurisdiction over particular offenses. Moreover, it reduces, but in no way eliminates, the power of the Security Council over ongoing proceedings by permitting the Council to interfere only if it adopts a binding decision requesting the Court not to commence an investigation or prosecution, or to defer any proceeding already in progress. Finally, the ILC requirement of a Security Council determination as to aggression is now uncertain.

The Entry into Force of the ICC Statute

In a Resolution annexed to the Statute for the Court, the Diplomatic Conference established a Preparatory Commission (PrepCom II) to continue work on the development of the Court. Like the Preparatory Committee that had prepared the draft Statute, the Preparatory Commission was composed of representatives from states. Indeed, many of the delegates who had represented their governments during the Preparatory Committee meetings and the Diplomatic Conference continued to attend sessions of the Preparatory Commission, which greatly facilitated the PrepCom's work.

Pursuant to the Final Act of the Diplomatic Conference, the Preparatory Commission was charged with drafting the Rules of Procedure and Evidence (RPE); Elements of Crimes; a relationship agreement between the Court and the United Nations; basic principles of the headquarters agreement; financial regulations and rules; an agreement on the privileges and immunities of the Court; a budget for the first financial year; and the rules of procedure for the Court's Assembly of States Parties (ASP) that would ultimately provide the Court's management and oversight.

A deadline of June 30, 2000, was provided for the completion of the Rules of Procedure and Evidence and the Elements of Crimes, but no specific deadline existed for the other documents to be negotiated. The deadline was imposed to ensure that these two important documents would be finalized quickly, so that negotiation of their texts would not jeopardize either the ratification process or the establishment of the Court itself.

The Preparatory Commission held ten sessions from 1999 to 2002 and completed most of the preliminary work required for the establishment of the Court. The Preparatory Commission, like the Diplomatic Conference, was chaired by Ambassador Phillippe Kirsch, of Canada. During the initial sessions, the focus was on completing the Elements of Crimes, Rules of Procedure of Evidence, and beginning discussions on the crime of aggression. These very technical discussions continued during subsequent sessions of the Preparatory Commission as well as intersessional meetings, and ultimately culminated in the adoption of the Elements of Crimes and Rules of Procedure of Evidence (RPE) by consensus. Having completed the Elements and RPE in a timely fashion, the Preparatory Commission then turned its attention, in its sixth session, to the crime of aggression, to the Relationship Agreement between the Court and the United Nations, the Financial Regulations and Rules of the Court, and the Agreement on Privileges and Immunities of the Court.

By the end of 1998, all fifteen member states of the European Union had added their signatures to the Statute, and by March of 1999, seventy-nine states had signed the Statute and one, Senegal, had ratified it. For many states, the ratification process engendered complications unrelated to their general support for (or opposition to) the Court. Many states were required to amend their constitutions to accommodate a variety of legal obstacles: the imposition of life sentences was unconstitutional in some states, presidential immunity had to be waived for others, and for most states, adoption of the implementing legislation that would be required in order to carry out the Statute's obligations was a lengthy process. Many observers stated both privately and publicly that they expected the process to take ten to twenty years. But pressure to ratify the Statute continued to build, through the work of NGOs, the convening of regional conferences, and the ongoing work of the Preparatory Commission.

By the opening of the seventh session of the Preparatory Commission on February 26, 2001, 139 states had signed the Statute and twenty-nine had ratified it. Thus, although many of PrepCom II's initial agenda items remained, attention began to turn to the practical issues that would soon arise as a result of the Statute's entry into force, including structured contacts with the Netherlands (the host government for the ICC) concerning its preparations for the Court's establishment, and the creation of a "road map" for the coming into force of the Statute.

While the Preparatory Commission continued its work on the ancillary documents, as well as on the ever-present problem of the crime of aggression, NGOs around the world, as well as national and international bar associations, started contemplating the formation of an ICC bar association and attending to the selection of the Court's first judges and prosecutor. The penultimate session of the Preparatory Commission opened on April 8, 2002, with fifty-six states parties to the Statute. To accommodate the wishes of several countries to be considered the 60th state to ratify the Treaty, on April 11, 2002, the United Nations held a ceremony during which ten countries simultaneously deposited instruments of ratification, bringing the total number of state parties to sixty-six, six more than the number required by the Statute for the Treaty's entry into force. The Preparatory Commission also set about finishing its work, so that by the conclusion of its tenth and final session in July 2002, the Assembly of States Parties, which would be assuming the Preparatory Commission's functions, as well as the tasks assigned to it by the ICC Statute, could begin its work. During its first session, the Assembly of States Parties adopted the work of the Preparatory Commission and elected the members of the bureau, including its president, H. R. H. Prince Zeid Ra'ad Zeid Al-Hussein, of Jordan. During its second session, held from February 3 to 7, 2003, the ICC elected its first judges. Candidates from forty-three countries were nominated, and the judges were elected from among those presented. At the end of thirty-three rounds of balloting, eighteen extraordinarily well-qualified judges had been selected, including seven women. A ceremony was held in The Hague during which they were sworn in, pledging to fulfill their duties "honorably, faithfully, impartially, and conscientiously." The judges subsequently elected Canadian Philippe Kirsch as president, and Elizabeth Odio Benito (Costa Rica) and Akua Kuenyehia (Ghana) as vice-presidents.

The selection of the Court's Prosecutor was more problematic, as States endeavored to find a candidate who could be chosen by consensus. Ultimately, a distinguished Argentinian lawyer and law professor was selected, Luis Moreno Ocampo. Moreno Ocampo had established his reputation as a prosecutor during several high profile trials involving leading figures from Argentina's military junta. His nomination was uncontested, and he was installed in The Hague on June 16, 2003.

The United States' Objections to the Court

Although President Clinton and the U.S. Congress expressed general support for the establishment of the ICC, as the opening of the Diplomatic Conference drew near, U.S. negotiators within the administration and other influential political figures and commentators appeared increasingly wary of the Court. Following the Rome Conference, Ambassador David J. Scheffer, head of the U.S. Delegation in Rome, testified before the Senate Foreign Relations Committee and identified several principal objections to the Statute, three of which continued to form the crux of the Bush administration's opposition to the Court. First, Ambassador Scheffer argued "a form of jurisdiction over non-party states was adopted." Second, he complained that the Statute created a prosecutor who could, on his own authority with the consent of two judges, initiate investigations and prosecutions. Finally, he objected that the Statute did not clearly require an affirmative determination by the Security Council prior to bringing a complaint for aggression before the Court.

As a matter of law, the U.S. objections were relatively insubstantial, and most observers felt they could eventually be overcome. On December 31, 2000, the last day the Statute was open for signature, Ambassador Scheffer signed the Rome Statue for the ICC on behalf of the U.S. government. Although President Clinton maintained that his administration still had concerns about "significant flaws" in the treaty, he asserted that the U.S. signed the treaty "to reaffirm our strong support for international accountability," and to "remain engaged in making the ICC International Criminal Court an instrument of impartial and effective justice."

The Clinton policy towards the ICC can be described as an attitude of "cautious engagement," meaning that the United States would stay committed to the Court in principle, but work aggressively to protect American national interests during the negotiating process. The Bush administration, however, rejected this "wait and see" approach to the Treaty in favor of a policy of direct hostility. This reflects the views of Under-secretary John Bolton, an opponent of the Court for many years, who has forcefully argued that the Court should be weakened, and ultimately, "wither and collapse, which should be [the U.S.] objective."

This policy led President George W. Bush to sign into law the American Service Members' Protection Act, which, among other things, authorizes the president to use military force to "rescue" any U.S. soldier detained by the ICC at The Hague. The Bush administration has also abandoned all negotiations pertaining to the Court, and has, through the offices of Under Secretary Bolton, written to the secretary-general of the United Nations terminating the effect of U.S. signature of the treaty. The U.S. government has declined to participate in the election of the Court's Judges and Prosecutor, and has negotiated dozens of bilateral immunity (so-called Article 98) agreements with the other countries, requiring them to turn over all U.S. citizens to the United States for prosecution, rather than to the ICC. Finally, the United States has proposed and obtained Security Council Resolutions exempting UN peace-keeping missions from the ICC Statute, despite the strong objections of many allies and the UN secretary-general.

Some observers have suggested that the Bush administration's views may suggest hostility, or at least ambivalence, towards the most fundamental principles of war crimes law. Others opine that the opposition does not stem from any particular feature of the Court or its mission, but from a deep-seated distrust of all international institutions, whatever their mandate. Finally, it may be that the Bush administration's attack on the Court is premised on the belief, expressed in the National Security Strategy Document released by the government in September 2002, that the United States should use its military force preemptively in its own defense, as well as act assertively and militarily to promote U.S. interests in the world. Under this view, it is not only inadvisable for the United States to ratify the Statute, but the Court must be eliminated or disabled to remove it as a potential constraint to the use of U.S. military force.

SEE ALSO Humanitarian Law; International Court of Justice; International Criminal Tribunal for Rwanda; International Criminal Tribunal for the Former Yugoslavia; International Law; Nuremberg Trials; Tokyo Trial; War Crimes

BIBLIOGRAPHY

Cassese, Antonio, Paola Gaeta, and John R. W. D. Jones, eds. (2002). The Rome Statute of the International Criminal Court, 2 volumes. Oxford, U.K.: Oxford University Press.

Lee, Roy S., ed. (1999). The International Criminal Court:The Making of the Rome Statute. The Hague: Kluwer Law International.

Sadat, Leila Nadya (2002). The International Criminal Court and the Transformation of International Law: Justice for the New Millennium. Ardsley, N.Y.: Transnational.

Schabas, William A. (2001). An Introduction to theInternational Criminal Court. Cambridge: Cambridge University Press.

Triffterer, Otto, ed. (1999). Commentary on the RomeStatute of the International Criminal Court. Baden-Baden, Germany: Nomos.

Leila Sadat