There is a chance that the idea of an International Criminal Court (ICC) will soon become reality once negotiations to constitute it are concluded at a diplomatic conference scheduled in Rome in the summer of 1998.
In the period between the two world wars, there were several attempts to set up an international tribunal to try the German Emperor and other people responsible for assassination and genocide, including terrorism. But with no State ratifying a treaty. for an international criminal court, the momentum for the initiative slackened.
After the Second World War, the establishment of the Nuremberg and Tokyo international military tribunals to try the leaders of the Nazi and Japanese regimes revived the debate. In the 1948 Genocide Convention, the United Nations General Assembly mentioned for the first time the need to study the creation of an international criminal court for one specific crime - genocide. In the 1950s, the International Law Commission (ILC) was mandated to codify the Nuremberg principles and to prepare a draft statute to create an international criminal court with a jurisdiction comparable to that of the Nuremberg Tribunal. And at the end of the cold war, Trinidad and Tobago proposed to the United Nations an international criminal court to try drug traffickers.
In 1992, the General Assembly instructed the ILC to direct its attention to the creation of a permanent international criminal court. The creation of two ad hoc international tribunals by the Security Council - for crimes in the former Yugoslavia and Rwanda, respectively - spurred the Commission and in 1994 it produced a Draft Statute, which was referred to the General Assembly for consideration. A Preparatory Committee was established to discuss issues related to this and to "draft texts, with a view to 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". The Preparatory Committee will have had six meetings in preparation for the Rome conference.
Because the General Assembly has taken the initiative to establish an international criminal court, it is possible for all the Member States and States or organizations with an observer status to participate in the considerations about the Court. But not all the preparations take place during the General Assembly session. Meetings of the Ad Hoc and the Preparatory Committees were and will be held at other times. Delegations of developing countries are therefore not always able to attend the discussions. They simply do not have the resources to send their representatives around the world for every meeting. This means that they may have less influence on the establishment of this important international judicial institution, although it will affect them as much as it will affect the developed countries.
To overcome this problem, the Secretary-General has established a trust fund for the participation of the least developed countries in the work of the Preparatory Committee and in the diplomatic conference of plenipotentiaries. Contributions to the fund have been made by Belgium, Canada, Denmark Finland, Netherlands, Norway and Sweden. As of 14 August 1997, $300,000 has been received by the fund, and 12 States have used it to participate in the last session of the Preparatory Committee.
As one can imagine, not only Member States have interest in the establishment of the ICC. Non-governmental organizations (NGOs) advocate the creation of the Court as well. A wide range of NGOs will see their subject of interest affected by the establishment of the Court. The International Committee of the Red Cross is one of the first that comes to mind, with its representative on the Sixth and Preparatory Committees. But NGOs with interests in human rights, international law, peace, humanitarian affairs, religion, women's rights, health and other subjects are also in favour of the Court. They attend the open meetings of the Committees and send delegations with extensive commentaries on the Draft Statute.
Bringing this broad-based network of NGOs together is the NGO Coalition for an International Criminal Court (CICC), with more than 300 members. The CICC's main purpose is to advocate the creation of an effective and just ICC, and brings NGOs together with international law experts to develop strategies on substantive legal and political issues relating to the proposed statute. Apart from this, it also maintains a webpage on the Internet, facilitates meetings between the Coalition and representatives of Governments as well as UN officials. It also promotes education and awareness of the ICC proposals and the negotiations at public and professional conferences.
During meetings of the Sixth Committee in 1997, Member States have stressed the importance of the NGOs participating in the diplomatic conference according to modalities laid down in UN resolutions.
The International Law Commission (ILC) has considered four options for the creation of an International Criminal Court.
* An amendment to the UN Charter, which would make the court a principal organ of the United Nations. This would place it on equal footing with the other principal organs, such as the Security Council and the International Court of Justice. Two thirds of the United Nations Member States, including all five permanent members of the Security Council, need to ratify such an amendment.
* A resolution of the Security Council along the lines of the resolutions that created the ad hoc tribunals for the former Yugoslavia and Rwanda. This would allow for its immediate creation, without ratification, and give it universal jurisdiction. But the power of the Security Council to establish such a court is limited under Chapter VII of the UN Charter "to a particular situation" and the Council has the power to abolish the court that it has created.
* A resolution of the General Assembly, which would make the court a subsidiary body to the General Assembly This would endow the court with broad support without the necessity of the agreement or ratification of all permanent members of the Security Council, and the court would have universal jurisdiction. But, according to the Charter, the General Assembly cannot take binding decisions on protecting peace and security or enforcing international law, and what makes it uncertain is whether such a resolution would provide a legal basis for the establishment for an international criminal court.
* A multilateral treaty, which would not require the ratification of two thirds of the United Nations Member States nor agreement of all permanent members of the Security Council. It would need only the number of ratifications as determined by the Statute itself. On the other hand, the court would not be universal, and would be recognized only by the States that ratified the treaty. The ILC has proposed to opt for this possibility.
A permanent international criminal court is needed because there are various crimes which are not committed by a group of persons from the same State, nor within the borders of one State or against the civilians of one State. Wars, for example, have been and still are fought across borders; and acts of genocide are by definition not committed against citizens of a single State, but rather against transborder ethnic groups or peoples. These crimes are defined in international law and because there are numerous difficulties in prosecuting those responsible for such crimes before national criminal courts, an international criminal court is needed to bring these people to justice. Although the chance of establishing a court with universal participation is not great and the possibility will always remain that criminals could escape the court's jurisdiction by fleeing to a State that is not a member to the Statute, the chance that justice will be done if an international criminal court is established becomes more realistic.
Why should such a court be permanent? Is the establishment of a temporary court or tribunal not enough?
Until now, the international community has only established tribunals or courts for one specific event and with a mandate for a period of time, such as the Nuremberg international military tribunal or the ad hoc international tribunal for the former Yugoslavia. The disadvantages of such tribunals are obvious. Before it can exercise its jurisdiction, there has to be broad agreement that an international tribunal is wanted and is established by treaty or a resolution of the Security Council. Each court or tribunal needs its own expert staff, which requires a lot of money and investment in expertise. And it is only used once. Those conflicts or crimes, which are not "worth" an international tribunal, will remain unpunished.
RELATED ARTICLE: The right moment in time?
Earlier attempts to establish an international criminal court were unsuccessful, partly because it was the wrong moment in time. To make the idea of an international criminal court effective, a number of States will have to agree on its establishment, participate in the preparatory discussions and adopt the final convention. Even then, it is still not certain that thee establishment of the ICC will take place with n this century. As of now, no Government has publicly opposed the Court, but there are still a lot of unsolved problems and delicate matters to handle.
In the first place, there is the question of which crimes will be within the jurisdiction of the Court. Should the ICC only judge the so-called "core crimes" genocide, serious violations of tile laws and customs applicable in armed conflict (war crimes) and crimes against humanity - and will the act of aggression be one of them? Or should it have jurisdiction over crimes which are designated as crimes by multilateral treaty as well, such as hijacking, crimes against diplomats, hostage-taking and drug-trafficking? Currently, the inclusion of the core crimes has the most supporters, although there is still a lot to discuss on whether or not the act of aggression is to be one of them. Those crimes which in the end will be within the Court's jurisdiction should be clearly defined in the Statute of the ICC or an annex, as almost all delegations agree. It remains uncertain, however, if violations of humanitarian law in both international and non-international armed conflicts should be included in the jurisdiction of the Court. The International Committee of the Red Cross is in favour of the inclusion of violations of humanitarian law in non-international conflicts in the jurisdiction of the Court, because of its experience "that most conflicts today are noninternational in character".
Secondly, it is important to decide which way the ICC will complement national jurisdiction. The ILC has proposed making the Court complementary to national justice systems in cases where such trial procedures may not be available or may be ineffective. Most States have agreed on this principle of complementarity, but the ILC's proposal can be interpreted in different ways.
Thirdly, there is no agreement on the question of when proceedings can be initiated or "triggered". Also, the ILC, in a proposal in the Draft Statute with which a lot of States are not satisfied, has suggested that the Court have the competence to try a person without the consent of the State in which he is physically present (custodial State) and the State in which he committed the crime (territorial State) only where the crime is genocide or where the Security Council, acting under Chapter VII of the United Nations Charter, so directs. In other cases, both the custodial State and the territorial State must be parties to the treaty establishing the Court and have made declarations accepting the Court's jurisdiction. As can be easily imagined, this would raise many obstacles that would prevent the Court from judging someone. There is the related issue of who will be in the position to initiate a proceeding. Most delegations agree that States which are parties to the treaty establishing the ICC should be able to submit complaints; but discussion is still going on regarding the question of whether or not the prosecutor should have the power to investigate on its own initiative or on the basis of information obtained from any source, without a State filing a complaint, and also regarding the role of the Security Council in the triggering of proceedings.
Fourthly, the modus under which the ICC will be established also has to be decided. There are currently four possibilities: an amendment to the Charter; a resolution of the Security Council; a resolution of the General Assembly; or a multilateral treaty. The last option is the most realistic one, although there are doubts about its effectiveness because it will result in a Court that fails to bind the States which are most wanted within the system. But difficulties in creating the Court by Charter amendment or as a subsidiary organ of the Security Council or the General Assembly would at best unduly delay the Court's creation and at worst make it as good as impossible.
Other delicate subjects which need further agreement are: the general principles of criminal law that should be included in the Statute; penalties; State cooperation with the ICC; procedural questions; fair trial and the rights of suspects and accused. Like the other issues, these will be further discussed in the coming meetings of the Preparatory Committee and at the diplomatic conference.
RELATED ARTICLE: Complementarity
The principle of complementarity - the way in which the International Criminal Court (ICC) complements national jurisdictions - is a very delicate issue. National criminal jurisdiction is seen by many States as a vital aspect of their sovereignty. The principle of complementarity helps decide in what situations the ICC, rather than a national court of a State that is party to the treaty establishing the Court, will have jurisdiction or when it can overrule a verdict of a national court. The International Law Commission Draft Statute for an ICC declares in its preamble that the Court "is intended to be complementary to national justice systems in cases where such trial procedures may not be available or may be ineffective". The declaration in the Draft Statute can be interpreted in two ways:
* It emphasizes the primary right of States to bring criminals to justice, allowing only an exceptional and restricted role for the ICC. The ICC would be able to act only if a State were acting in bad faith or if there were an unconscionable delay in the investigation, prosecution or request for extradition. This view could undermine the credibility of the Court, because it may be rendered powerless to override the decision of national authorities to refuse to prosecute or to review the "friendly prosecution" of a suspect before a national court.
* The other view proposes that the preamble be amended to emphasize that the ICC should act when States fail to carry out their duty to bring people to justice. By interpreting the preamble in this way, the role of the ICC would be less exceptional and restricted.
During the second meeting of the Preparatory Committee on the Establishment of an International Criminal Court, held from 4 to 15 August 1997, a draft text on the issue of complementarity was presented as the result of informal consultations. This text does not represent agreement on the issue, but does provide some direction on how the problem might be solved. In this proposal, the ICC would determine that a case is admissible when a State is unwilling or unable to carry out genuine investigation or prosecution.
Allied to this principle of complementarity is the question of who will decide when trial procedures of a national justice system are not available or not effective. In the draft text, it is proposed that the ICC itself should have this right.
RELATED ARTICLE: Wreaths of Regret and Resolve, not Revenge
One category of the most serious crimes of concern to the international community as a whole, the so-called "core crimes", are crimes against humanity, defined in the 1945 Charter of the International Military Tribunal (Nuremberg Charter). According to this Charter, crimes against humanity include "murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or prosecution on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated". During the meetings of the Preparatory Committee, almost all States agreed that this definition needs revision and expansion in the light of subsequent legal developments. Some delegations stated that crimes against humanity now also include torture, rape and other serious sexual assaults, unlawful imprisonment and arbitrary detention, forcible transfers of population and disappearances.
Rape, one of the crimes committed in the former Yugoslavia, was included within the jurisdiction of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (the International Tribunal for the former Yugoslavia) as a crime against humanity. And in May 1997 Dusko Tadic was convicted, inter alia, of cruel treatment, a violation of the laws or customs of war, inhumane acts and crimes against humanity based upon acts of sexual violence.
The International Law Commission Draft Statute provides that the Court is to have jurisdiction over genocide, aggression, serious violations of the laws and customs applicable in armed conflict (war crimes), crimes against humanity and treaty crimes, as listed in the Annex to the Statute. This Annex also lists grave breaches of the 1949 Geneva Conventions on the Laws of War and Protocol I of 1977, hijacking, apartheid, crimes against diplomats, hostage-taking, torture, seizure of ships and drug-trafficking, all of which are designated as crimes by multilateral treaty.
There are serious objections to the inclusion of aggression within the Court's jurisdiction. In the first place, there are difficulties experienced in defining this crime; secondly, major Powers insist that a determination by the Security Council that an act of aggression has been committed by a State be a precondition to any prosecution of an accused person. This last point has met with a lot of opposition, because it would give the Security Council, and thus any one of its permanent members, the power to veto the prosecution of an individual. There is also opposition to the inclusion of treaty crimes within the jurisdiction of the Court. On the one hand, such crimes are not part of customary international law and will therefore only qualify as crimes for States which are parties to the treaties in question; on the other, it is argued that these crimes will overburden and trivialize the Court.
The so called "core crimes" - genocide, war crimes and crimes against humanity - are set by both treaty and customs, and do not meet much opposition.
RELATED ARTICLE: Trigger Mechanisms
Closely related to the principle of complementarity of the International Criminal Court (ICC) is the question of bringing cases before the Court or "triggering" its jurisdiction. The International Law Commission (ILC) proposes that the ICC have automatic or inherent jurisdiction only in certain cases. This means that the Court will have the competence to try a person without the consent of the State in which he is physically present (custodial State) and the State in which he committed the crime (territorial State), only where the crime is genocide or where the Security Council, acting under Chapter VII of the UN Charter, so directs. In other cases, both the custodial State and the territorial State must be parties to the treaty establishing the Court and have made declarations accepting the Court's jurisdiction. There is growing opposition to this proposal and it seems possible that States may agree to give the Court inherent jurisdiction over the so-called "core crimes".
Another question is the role of the Prosecutor in initiating proceedings. The ILC Draft Statute provides that a prosecution is to be triggered either by a State complaint or by the Security Council acting under Chapter VII of the Charter, which means that the Prosecutor will be powerless to start a prosecution on its own initiative. This can be considered an important shortcoming, because States could be unprepared to risk the disruption of relations with other States by laying a complaint against another State. Another shortcoming of this proposal is that the Security Council can veto an individual's prosecution in two ways: either by vetoing the decision that an act of aggression has been committed or by vetoing the initiation of a proceeding. It was proposed at the August meeting of the Preparatory Committee that instead of the role as supported by the ILC on this last issue, the Security Council should make an affirmative decision to oppose a proceeding within a particular time period.
During the first two meetings of the Preparatory Committee, a large group of delegations argued that the prosecutor should have the power to initiate investigations by itself or on the basis of information obtained from any source, such as Governments, United Nations organs, and governmental and non-governmental organizations.
"We think we still have to work a lot on the principles of the trigger mechanisms as they are provided for in the ILC Draft. We are worried that, as they are now, they might again imply certain subordination of the Court to political organs, because currently only States or the Security Council can trigger the jurisdiction of the Court. So we believe that some role should be given to the prosecutor, maybe with some kind of special mechanism to allow for some kind of filter. But we do believe that the prosecutor should have more of a role to play in the triggering function of the Court."
- Mrs. Sylvia Fernandez de Gurmendi of Argentina, 7 October 1997
RELATED ARTICLE: The NGO Coalition for an International Criminal Court
From the very genesis of the idea nearly a century ago, "peace societies", such as the International Committee of the Red Cross, the International Law Association and the Inter-Parliamentary Union, have played an important role in advocating the creation of a permanent International Criminal Court (ICC). In early 1995, an informal nongovernmental network - NGO Coalition for an International Criminal Court - was formed to coordinate NGO activity on the ICC and disseminate information on the progress of the negotiations. The Coalition has become recognized by Governments and the ICC Preparatory Committee secretariat as the convenor of NGOs working on the ICC issue.
The Coalition has grown from a few dozen NGOs to over 275 organizations around the world, including those concerned with women's rights, the environment, indigenous peoples, religion and ethics, peace and disarmament. A number of national networks have sprung up in such places as Rome, Brussels, Paris, Ottawa, London and Washington, D.C. And issue-focused caucuses and working groups have formed around gender issues, children's rights, victims' rights, religion and criminal defense.
To bring together such a broad cross-section of NGOs, the Coalition has a simple mandate: to work together to support the creation of an effective and just International Criminal Court. In service to this aim, the Coalition engages in a variety of activities, including convening meetings of Coalition members and working groups, disseminating information on the ICC over the Internet via its World Wide Web page and e-mail listserv, facilitating meetings between governmental delegations and NGO representatives, promoting education and awareness of the ICC at relevant meetings and conferences, and producing its newsletter - the ICC Monitor - and other publications such as media advisories, discussion papers and information sheets.
Increasingly, NGOs from all sectors of civil society are realizing that the creation of a permanent International Criminal Court - an institution to bring to justice individuals for committing the most serious international crimes of genocide, war crimes and crimes against humanity - is a noble, necessary and achievable cause.…