An International Criminal Court?

Valerie Aggerbeck

1. An International Criminal Court?
2. A Short History
3. How will the ICC work?
4.  Jurisdiction of the ICC

1. An International Criminal Court?

After the Universal Declaration of Human Rights was signed in December 1948, nations hoped to see a world where the dignity and integrity of each person would be respected and sought to protect the rights of individuals everywhere. However, despite these praise-worthy ideals, the twentieth century has seen some of the worst atrocities committed against mankind and an unprecedented level of organized violence. In the last fifty years, more than 86 million civilians have died in over 250 conflicts, in Rwanda, Yugoslavia, Zaire and Cambodia to name only a few. This in turn has brought international attention and awareness to the issues of security and peace, and the understanding that the international community should act in order to prevent future human rights violations from occurring.

Of course, numerous national laws, as well as international treaties exist concerning crimes such as genocide, war crimes, and crimes against humanity; however, few perpetrators have been brought to justice. Indeed, in many countries, a reliable system for enforcing these laws is lacking and there is no international institution with the power to prosecute such crimes. For this reason, many countries have desired the creation of an international criminal court able to try and punish individuals responsible for such acts.

The United Nations has had a primary role in the formation of the International Criminal Court (ICC). The aim of the United Nations is to bring peace and secure universal respect for human rights and freedoms. The International Criminal Court would help further these goals by serving as a permanent international tribunal that is able to prosecute and try individuals responsible for serious crimes such as genocide, war crimes, and crimes against humanity. The ICC would provide guidance for countries to prosecute criminals and offer a permanent back-up if they were unable or unwilling to do so because of violence, intimidation, or lack of resources or political will. Furthermore, because the ICC would be a permanent criminal court, it would avoid the deferment and start-up costs of creating specific (ad hoc) tribunals each time the need arose. It would also remedy the deficiencies of the latter, since it would operate in a more consistent fashion and be global in its reach. In this, it differs from the International Court of Justice, which is a civil tribunal that hears disputes between countries, and from the International Criminal Tribunals for Rwanda and Yugoslavia, which are geographically limited.

However, despite its numerous advocates and commendable goals, the International Criminal Court has had to face certain critics. Some countries have argued that the International Criminal Court would go against their national interests and domestic laws and constitutions. Furthermore, according to them, it would affect their sovereignty as well as internal security matters. Indeed, the prosecutor would have strong powers and the jurisdiction of the ICC could extend to non-member parties. Thus, American scholars and politicians have argued that the International Criminal Court is inconsistent with the United States' existing laws and codifications and would threaten American self-government (one of the reasons why the United States has refused to ratify the treaty as of yet). The monetary issue has also not been finalized. The member states of the ICC will decide upon compensation and other monetary matters, and some have argued that the costs may exceed what is expected. Furthermore, the clarity of the definitions used in the ICC treaty has also brought forward some issues. Indeed, some terms (such as that of aggression), remain vague or are stated in ambiguous language, which has caused them to be left out of the treaty and may lead to problems in the future. Also, not all states agree on the crimes that should be prosecuted or not. For example, some argue that drug trafficking and terrorism should be included in the treaty while others disagree vehemently, an issue which may bring forth future abuses. Hence, some countries, in particular the United States, are afraid that the justice brought forth by the International Criminal Court would be arbitrary, selective and politicized. Some American politicians, for example, fear that the International Criminal Court would punish U.S. troops or officials for their decisions. For these numerous reasons, that is to say the diversity of legal systems and political wills, it has been difficult to come to a consensus regarding certain questions.

These issues not withstanding, the ICC's aim is to provide stability and consistency in international criminal jurisdiction and ensure that human rights violations no longer go unpunished.

2. A Short History

The International Criminal Court is not a new concept and the idea of establishing such an institution has been discussed numerous times. The intent to bring war criminals to court emerged after World War I in 1919 when a 'Commission on the Responsibility of the Authors of the War and on the Enforcement of Penalties' resolved that an international court should be established in order to punish those 'who have been guilty of offenses against the laws and customs of war or the laws of humanity'. The Versailles Treaty instituted a special international court; however, the latter was never actually established for lack of cooperation between the various countries to bring the accused to court. The idea was then not brought forward again until the Nuremberg Trials.

The Nuremberg Trials took place after World War II. Indeed, the nations of the world understood the need for an international criminal court to try crimes such as those that occurred during the Second World War. The Allies (France, England, the Soviet Union and the United States) established an allied tribunal with jurisdiction over war crimes, crimes against peace and crimes against humanity. Thus, between August 1945 and October 1946, 22 Nazis were tried and sentenced. A tribunal was also held in Tokyo for Japanese war criminals. Following these events, the United Nations General Assembly established the Committee on the Progressive Development of International Law and its Codification on December 11, 1946. Its primary purpose was to 'treat as a matter of primary importance plans for the formulation...of the principles recognized in the Charter of the Nuremberg Tribunal and in the judgment of the Tribunal'. On December 9, 1948, the UN General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide. The latter provides that individuals accused of genocide may be tried "by a competent tribunal of the state in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction....". Following these efforts, the UN appointed 17 experts in December 1950 to prepare a draft statute for an international criminal court. However, efforts to draft such a statute failed due to the lack of definition of 'aggression'; while the divisions of the Cold War delayed further negotiations for a permanent International Criminal Court. Thus, for a number of years, little progress was made.

The concept of an ICC resurfaced in the 1990's when armed conflicts broke out amongst the various Yugoslav republics and in Rwanda. In 1992, the UN asked the 34-member International Law Commission (ILC) to draft a new statute for an international criminal court. However, because of the atrocity of the confrontations in the former Yugoslavia, the UN Security Council established the International Criminal Tribunal for the Former Yugoslavia in February 1993. The latter was given jurisdiction over genocide, crimes against humanity and violations of the laws and customs of war. It was also given jurisdiction to prosecute grave breaches of the Geneva Convention of 1949, which provides for the basic protection of civilian persons in times of war and for the adequate treatment of prisoners of war. Another ad hoc tribunal was created after the massacre of hundreds of thousands of Tutsis in April 1994 in Rwanda. The Security Council established the International Criminal Tribunal for Rwanda in November 1994 and gave it jurisdiction over genocide, crimes against humanity and war crimes (these include rape, torture and murder).

During this time, the ILC finished its work on the statute for the International Criminal Court and the UN General Assembly consequently established a Preparatory Committee which was to devise a 'widely acceptable consolidated text of a convention for an International Criminal Court'. The UN sponsored a Conference in Rome in June 1998 to draft the Rome Treaty for the establishment of the ICC. The United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court opened on June 15, 1998 and was attended by one hundred and sixty countries. After five weeks of intense negotiating, on July 17 1998, one hundred and twenty countries voted to adopt the Rome Statute of the International Criminal Court, while seven countries voted against it and twenty-one abstained. Among the countries that voted against it were China, Israel, Iraq and the United States.

3. How will the ICC work?

For the International Criminal Court to be set up, sixty countries need to ratify the treaty. 139 countries signed the treaty by the December 31st 2000 deadline and as of June 21st 2001, 35 countries have ratified it. Any country can ratify the ICC treaty, however, countries that ratify must abide by certain standards and rules. Indeed, members must accept the court's jurisdiction and cooperate in investigating and prosecuting crimes (including the extradition of suspects to the ICC) and enforcing penalties. The countries that do not ratify the ICC treaty will be prohibited from participating in the nomination of the Court's judges and prosecutor. They will not be able to contribute to decisions concerning the budget and will not have a voice in administrative matters.

The ICC will have a permanent seat in The Hague, Netherlands though it will also be able to sit in other countries when necessary. The countries belonging to the ICC will decide upon its budget and provide the necessary funding. The United Nations will also contribute funds, and voluntary contributions will be allowed.

The ICC will be composed of four organs: the Presidency, the Chambers/Judiciary(18 judges, sitting on pre-trial, trial and appeal benches), the Procuracy/Office of the Prosecutor, and the Registry/Office of the Registrar. Judges, the Prosecutor, and the Deputy Prosecutor will be elected by the countries that have ratified the Statute of the ICC. Each judge will be elected for a nine-year renewable term by an absolute majority of the member states. An absolute majority of judges will then elect the president and two alternate vice-presidents each serving a three year term. The Procuracy will be headed by a Prosecutor, helped by deputies and a qualified staff. The registrar will be responsible for non-judicial aspects of administration within the ICC.

The Prosecutor, who is in charge of investigating crimes and prosecuting criminals, will be able to proceed in three different ways. He may examine information that a crime has been committed and request the authorization from a panel of ICC judges to begin an investigation. Any country that has ratified the treaty may also refer a situation in which a crime or crimes appear to have been committed to the prosecutor for investigation. Or finally, the United Nations Security Council may bring to the prosecutor's attention a crime or crimes that have occurred.

4. Jurisdiction of the ICC

The Statute of the ICC defines how the International Criminal Court will function and which cases it will hear. The ICC will have a jurisdiction complementary to the jurisdiction of national courts and is not intended to replace national tribunals. Thus, national courts have the primary responsibility to prosecute serious international crimes; but the ICC will be allowed to step in if states fail to implement their duty. If national courts make appropriate efforts to investigate and prosecute those responsible for war crimes, crimes against humanity and genocide, the ICC will be barred from proceeding.

The ICC will have jurisdiction over crimes committed on the territory of any member state, or by nationals of governments that have ratified the treaty. It will also exert its jurisdiction where a non-member state has accepted its jurisdiction with regards to crimes in their territory or committed by their citizens.

The ICC can try any individual responsible for war crimes, crimes against humanity and genocide, regardless of his civilian or military status or official position. In order to do so, the terms 'war crimes, crimes against humanity and genocide' have been specifically addressed and carefully described in the treaty so as to avoid any difficulty and ensure consistency with current international law. Genocide refers to serious acts (killing or bodily harm) that are committed with 'the intent to destroy in whole or in part a national, ethnic, racial or religious group'. Crimes against humanity are serious crimes that include 'widespread and systematic attacks against the civilian population'. They include murder, torture, sexual violence and other specified inhumane acts and can be committed during times of peace or war. War crimes are crimes committed during armed conflict. They include acts such as torture, sexual violence, pillage, employing poisonous weapons, intentionally starving civilians and other grave breaches of the Geneva Conventions of 1949.

Those accused of such crimes will enjoy certain rights, including the presumption of innocence, the right to counsel, the right to due process and a fair trial, to present evidence, the right to remain silent, and the right to have charges proved beyond a reasonable doubt. These rights will be protected in trial and appeal procedures and during investigations. Furthermore, the court will not proceed in absentia, that is, the suspect will have to be physically present for the trial to occur. Finally, the highest penalty that can be imposed by the ICC is life imprisonment; it cannot impose the death penalty.

There also exist various safeguards within the ICC treaty so as to avoid frivolous and politically motivated cases. Indictments as well as any investigation initiated by the Prosecutor will have to be confirmed and approved by a Pre-Trial Chamber of three judges, which will examine the evidence. The accused will have the opportunity to challenge the indictment during confirmation hearings before the Pre-Trial Chamber. Moreover, the selection of the prosecutor and the judges will be very strict. Experts with a good reputation and conscientious and independent character will be nominated by states that join the ICC to be elected as judges and prosecutor (via secret ballot). Only those eligible to hold judicial office in their own country can be nominated as judges of the ICC. The judges will not be allowed to exercise any activity (such as belonging to certain organizations, etc...) that might jeopardize their independence, and can be disqualified if there is any question of partiality or conflict-of-interest situation. Ultimately, if they abuse their powers, they can be impeached.

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