Courting Danger: What's Wrong with the International Criminal Court

By Bolton, John | The National Interest, Winter 1998 | Go to article overview
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Courting Danger: What's Wrong with the International Criminal Court

Bolton, John, The National Interest

Advocates of a permanent international court to try perpetrators of war crimes and other "crimes against humanity" achieved a major success in July 1997, with the adoption of a multilateral agreement called "the Statute of Rome." This treaty will enter into force after ratification by sixty states (which is expected to occur in 1999 or soon thereafter), creating the first new global juridical institution since the International Court of Justice (ICJ) in 1945. In the eyes of its supporters, the nascent International Criminal Court (ICC) is simply an overdue addition to the family of international organizations, an evolutionary step up from the Nuremberg tribunal, and the next logical institutional development over the ad hoc war crimes courts in Bosnia and Rwanda.

On the surface, this logic is straightforward. Through the Genocide Convention of 1948, the four Geneva Conventions of 1949,(1) and subsequent agreements, many of the "principles" of Nuremberg have been adopted in international treaties. The Cold War, however, essentially froze any prospect that the United Nations could serve as a useful vehicle for the creation of new institutions to "enforce" these conventions. Until the Security Council created the Bosnia tribunal in 1993, and a copy for Rwanda shortly thereafter, there were no international war crimes courts. Only the sporadic use of national judicial mechanisms existed, and more often than not these legal systems were either unavailable to the victims of war crimes and crimes against humanity, or were deemed inadequate afterthoughts. The ICJ, although popularly known as "the World Court", has jurisdiction only over disputes between states, not the adjudication of individual guilt or innocence for violations of international codes of conduct.(2)

With the fading of the Cold War, and particularly with the inauguration of the Clinton administration, however, the International Law Commission(3) resumed serious discussions about the creation of a permanent international criminal court, moving in 1994 to a Preparatory Committee established by the General Assembly. This Committee (essentially a committee of the whole General Assembly) made the final preparations for the Rome Conference in the summer of 1998.

The product of the Conference - the Statute of Rome - establishes both substantive principles of international law and creates new institutions and procedures to adjudicate these principles. Substantively, the Statute confers jurisdiction on the ICC over four crimes: genocide, crimes against humanity, war crimes, and the crime of aggression.

"Genocide" is defined essentially as in the original Genocide Convention of 1948, and prohibits acts intended to destroy national or ethnic groups (Article 6 of the Rome Statute). "Crimes against humanity" are broadly defined to prohibit "widespread or systematic" attacks against civilians that result in murder, enslavement, torture, rape, persecution, enforced disappearances, apartheid, and other enumerated offenses (Article 7). Prohibited "war crimes" include acts "committed as a part of a plan or policy" such as: violations of the four Geneva Conventions; attacks against civilian populations and objects or humanitarian personnel or installations; using weapons that cause superfluous injury or unnecessary suffering; outrages upon personal dignity; starvation as a method of warfare; using civilians as human shields; and a variety of other offenses (Article 8). The "crime of aggression", although declared criminal, is not defined, and the ICC's jurisdiction will not actually attach until the states party to the Statute of Rome agree on a definition pursuant to the Statute's amendatory articles.

Organizationally, the Statute creates an International Criminal Court of eighteen justices to be selected by the treaty parties, and elaborates the Court's structures and procedures. Judges on the Court must reflect "the principal legal systems of the world" and an "equitable geographical representation.

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Courting Danger: What's Wrong with the International Criminal Court


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