Following a United Nations conference at Rome, a treaty calling for the establishment of the world’s first comprehensive criminal court was opened for signature. The International Criminal Court later entered into force, with the power to exercise jurisdiction over individuals who commit genocide, crimes against humanity, or war crimes as well as violations of the undefined crime of “aggression.”
Traditionally, individuals guilty of the commission of war crimes have been only rarely brought to justice by governments in their national courts. More frequently they have escaped prosecution and punishment altogether. Certain international crimes, such as piracy and slave trade, were more effectively suppressed by governments through application of universal jurisdiction—a principle by which any state apprehending such criminals could prosecute them. In the twentieth century, efforts to bring those guilty of heinous war crimes and crimes against humanity took a major step forward with the Nuremberg and Tokyo trials after World War II, although some regarded those efforts as mere “victor’s justice.” The 1948 convention against genocide opened the possibility of legal action against perpetrators of genocide, but despite the existence of a growing body of United Nations human rights treaties, gross violations of humanitarian and human rights were pervasive in the latter half of the twentieth century.
In the early 1990’s, governments began to take action against such abuses. The U.N. Security Council established ad hoc criminal tribunals for Yugoslavia and Rwanda, where widespread “ethnic cleansing” and genocide had erupted. Dozens of prosecutions by those tribunals led to numerous sentences for war criminals and also to the first judgments against those guilty of genocide. A growing sentiment in favor of moving beyond ad hoc responses gave momentum to the establishment of an international criminal court with universal jurisdiction.
The adoption of the Rome Statute of the International Criminal Court on July 17, 1998, was preceeded by several years of discussion and negotiation by governments. Discussions about the need to establish such a body had languished for many years from 1950 onward in various U.N. committees and in the International Law Commission (ILC). In 1991, the ILC reported a revised version of a 1954 draft code to governments, and under the leadership of James Crawford, it produced a draft statute for an international criminal court in 1994. Two years later, the ILC produced a Draft Code of Crimes Against the Peace and Security of Mankind, dealing with the thorny definitional question of crimes of “aggression.” The ILC’s work, coupled with the development of jurisprudence in the criminal courts on Yugoslavia and Rwanda, provided substantial momentum for international deliberation on the establishment of the International Criminal Court (ICC).
In 1996, a Preparatory Commission was established to review the ILC draft statute. Consisting of U.N. member governments as well as representatives from intergovernmental and nongovernmental organizations, it reviewed the ILC draft during several negotiating sessions over the next two years, producing numerous amendments. Although many issues of controversy were gradually resolved, a number of inveterate differences continued to elude full consensus, some of these being rooted in the different legal systems and traditions embodied in the domestic and constitutional practices of member states, most notably the United States. Issues that remained contentious included, among others, the application of capital punishment, concern about prosecutorial independence and discretion, the role of the U.N. Security Council in the determination of prosecutions, the unprecedented inclusion of an undefined crime of aggression on the list of prosecutable crimes, the status of the military personnel of nonmember states operating as peacekeepers, the prohibition of reservations, and the implication of the amendment process as applied to definition of crimes.
The Rome Conference met on June 15, 1998, in an effort to reach consensus on a number of still outstanding controversial questions. Although some were resolved, complete consensus was ultimately not possible. A group of about sixty “like-minded” states, including Canada and a number of European democracies, served as the core group, whose views about the structure, jurisdiction, and functioning of the court tended to prevail as the majority view. However, several countries, including, most importantly, the United States, which is uniquely situated both in terms of its constitutional tradition and its status as the lone superpower capable of guaranteeing international peace and security, could not support the final draft of the statute.
The vote to adopt the Rome Statute was 120 in favor, 7 against, and 21 abstaining. The United States was one of the dissenting votes, but it continued to participate in Preparatory Commission meetings for the establishment of definitions of the prosecutable crimes. David Scheffer, President Bill Clinton’s chief ICC negotiator, subsequently provided explanations concerning U.S. reservations to the statute. Canadian lawyer Philippe Kirsch served skillfully as president of the ICC Conference Committee of the Whole and its efforts to produce as wide a possible consensus on the final draft of the statute. He was later named the ICC’s first president.
The ICC operates on the basis of complementarity, recognizing the right of member governments to exercise jurisdiction of criminal prosecutions involving war crimes. The ICC operates as a body separate and distinct from the United Nations, although under Article 19 the U.N. Security Council can force a deferral of ICC prosecutions—a provision that was considered controversial by those countries seeking an unfettered prosecutorial authority and by some permanent members of the Security Council who would have preferred to acknowledge the council’s right to veto ICC prosecutions. The ICC prosecutor may seek to prosecute cases where states parties are deemed not to have pursued a robust action or any action against an accused war criminal under its jurisdiction. Member states are obliged in such circumstances, barring other treaty obligations, to extradite suspected war criminals for trial by the ICC. Crimes that may be prosecuted include war crimes, crimes against humanity, genocide, and eventually the currently undefined and controversial crime of aggression. The Rome Statute does not permit death penalty sentences by the ICC.
The ICC entered into force on July 1, 2002, having achieved the necessary sixty member state ratifications. The first session of the Assembly of Parties was held in September, 2002. Judges were elected in February, 2003, and the first prosecutor, Luis Moreno-Ocampo of Argentina, was elected in April of that year.
Progress on implementation of the court was hampered by the nonparticipation by the United States, which had made plain its reservations regarding various provisions of the Rome Statute, beginning with the negotiation phase. President Bill Clinton
As of January, 2007, 104 countries had joined the ICC as members, the ICC had yet to produce a successful prosecution, although four situations had been brought to its attention, and seven warrants of arrest had been issued for suspected war criminals in the Democratic Republic of the Congo, Uganda, and Darfur, Sudan, where atrocities against civilian populations were widespread. As membership in the ICC grows, and as even nonparties take action through their national courts, there is hope that war crimes and other atrocities will cease to be committed in a climate of impunity.
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Broomhall, Bruce. International Justice and the International Criminal Court: Between Sovereignty and the Rule of Law. New York: Oxford University Press, 2003. Examines a range of international legal principles as developed in the Rome Statute. -
Politi, Mauro, and Giuseppe Nesi, eds. The Rome Statute of the International Criminal Court: A Challenge to Impunity. Burlington, Vt.: Ashgate, 2001. Collection of essays on the structure, function, implementation, and operation of the ICC. -
Schabas, William A. An Introduction to the International Criminal Court. New York: Cambridge University Press, 2004. Comprehensive treatment on the background and negotiation of the Rome Statute and a review of the purposes, jurisdiction, and functioning of the ICC. -
Sewall, Sarah B., and Carl Kaysen, eds. The United States and the International Criminal Court. Lanham, Md.: Rowman & Littlefield, 2000. Includes a range of essays on the political controversies and legal ramifications of U.S. relations with the ICC.
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