The International Criminal Court: Current Issues and Perspectives
Kirsch, Philippe, Law and Contemporary Problems
PHILIPPE KIRSCH, Q.C. [*]
The creation of a permanent international criminal court has been seen as a desirable objective for a long time. Although the issue was actively considered soon after World War II, historical circumstances, particularly the Cold War, have prevented agreement on its establishment until a conference held in 1999 in Rome. By the time the Rome Conference began, there was wide agreement on the general objectives of such a court. Nevertheless, the Conference was difficult, as it became the theater of a number of conflicts between different legal systems and political interests. The Statute of the Internal Criminal Court (the "ICC") that emerged relected an effort to find a balance between those interests, but could not be adopted by consensus because of the opposition of a few states, notably the United States. This essay develops four themes: (1) the objectives behind the establishment of an international criminal court; (2) the Rome Conference and the ICC Statute; (3) the future of the ICC, including signature a nd ratification and the work of the Preparatory Commission; and, finally, (4) the relationship between the ICC and the United States.
THE OBJECTIVES OF AN INTERNATIONAL CRIMINAL COURT
The basic objective of the establishment of an international criminal court was to replace a culture of impunity for the commission of very serious crimes, which has existed and still exists to a large extent, with a culture of accountability. The establishment of an international criminal court is in many ways the culmination of a series of international efforts in that direction. Those efforts, however, have often been frustrated for a variety of reasons, and, in any event, have been highly selective. After World War II, the Nuremberg and Tokyo Tribunals raised real expectations about a culture of accountability, but the realities of cold war paralysis quickly settled in. The notion that those violating the most serious laws of humanity must be prosecuted faded, and a culture of impunity re-emerged.
This paralysis began to change with the end of the Cold War, not only because the major powers could begin to cooperate on more issues, but also because events in several conflicts, primarily internal, demonstrated tragically that there was a continuing need to take steps to try to put an end to the abominable crimes that continued to be committed. In this short time, the change has been remarkable. Humanitarian considerations are now a normal part of state policies in a number of broader areas, including the maintenance of international peace and security.
The ad hoc Tribunals for Former Yugoslavia and Rwanda were established but necessarily limited in scope. The idea of a permanent international criminal court continued to develop, partly as a result of "tribunal fatigue,"  but also, whether we like it or not, because a number of states wanted to remove the Security Council's monopoly on international tribunals, which the states saw as being too selective in distributing justice. The question of the relationship between the international criminal court and the Security Council was settled in principle at the Rome Conference, but some of its aspects are likely to remain the subject of debate for some time to come, notably the role of the Security Council, if any, with respect to the crime of aggression.
Despite what was earlier identified as the shared objective--moving from a culture of impunity to a culture of accountability--there remains differences on modalities, and, rightly or wrongly, continuing and often successful attempts to maintain a high degree of selectivity in international justice. Nevertheless, a number of events in the past year alone demonstrate unprecedented and growing momentum for the punishment of past, present, and future crimes.
There is an ongoing argument on the deterrent effect, if any, of the action of international tribunals. …