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The Rome Statute of the International Criminal Court

Published online by Cambridge University Press:  27 February 2017

Mahnoush H. Arsanjani
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Extract

The United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (ICC) took place in Rome at the headquarters of the Food and Agriculture Organization from June 15 to July 17, 1998. The participants numbered 160 states, thirty-three intergovernmental organizations and a coalition of 236 nongovernmental organizations (NGOs). The conference concluded by adopting the Rome Statute of the International Criminal Court by a nonrecorded vote of 120 in favor, 7 against and 21 abstentions. The United States elected to indicate publicly that it had voted against the statute. France, the United Kingdom and the Russian Federation supported the statute.

Type
Developments in International Criminal Law
Information
American Journal of International Law , Volume 93 , Issue 1 , January 1999 , pp. 22 - 43
Copyright
Copyright © American Society of International Law 1999

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References

1 GA Res. 44/39, UN GAOR, 44th Sess., Supp. No. 49, at 311, UN Doc. A/44/49 (1989). The revival of the idea of establishing an international criminal court was initiated by Trinidad and Tobago in 1989 in connection with illicit trafficking in narcotic drugs across national frontiers and other transnational criminal activities. See Letter dated 21 August 1989 from the Permanent Representative of Trinidad and Tobago to the Secretary-General, UN GAOR, 44th Sess., Annex 44, Agenda Item 152, UN Doc. A/44/195 (1989).

2 GA Res. 47/33, UN GAOR, 47th Sess., Supp. No. 49, at 287, UN Doc. A/47/49 (1992); and GA Res. 48/31, UN GAOR, 48th Sess., Supp. No. 49, at 328, UN Doc. A/48/49 (1993).

3 See Report of the International Law Commission on the work of its forty-sixth session, UN GAOR, 49th Sess., Supp. No. 10, at 44, UN Doc. A/49/10 (1994).

4 GA Res. 49/53, UN GAOR, 49th Sess., Supp. No. 49, at 239, UN Doc. A/49/49 (1994).

5 For a record of the discussions in the Preparatory Committee, see the series of reports by Christopher Keith Hall in 91 AJIL 177 (1997), and 92 AJIL 124, 331, and 548 (1998).

6 UN Doc. A/CONF.183/2/Add.1 (1998).

7 An account of the negotiating process at the Rome Conference by Mr. Kirsch and John T. Holmes appears supra at p. 2.

8 After its adoption, the statute was found to contain a number of technical and typographical errors. In accordance with established practice, the depository circulated a note to governments, correcting the statute.

9 For the text, see Rome Statute of the International Criminal Courtjuly 17,1998, UN Doc. A/CONF.183/9* <http://www.un.org/icc>, reprinted in 37 ILM 999 (1998) [hereinafter ICC statute].

10 UN Doc. A/AC.249/1998/L.13 (1998).

11 The first chapter of the Statute of the International Court of Justice begins with the organization of the Court and the jurisdiction of the Court begins with Article 34 as chapter 2.

12 Partly owing to time constraints, the International Law Commission’s approach to the draft statute was to prepare a slim statute dealing with the essentials. The Commission also set aside the question of substantive criminal law and criminal procedure in the belief that the definition of crimes and other substantive criminal law were addressed in another topic before it, the draft Code of Crimes against the Peace and Security of Mankind. In addition, the Commission took the view that rules of criminal procedure will be covered in a separate document that will be prepared by the judges of the court. The General Assembly’s Sixth Committee, however, after receiving the Commission’s report, took a different position. It preferred a more elaborated statute that would leave less to interpretation byjudges. It also preferred to separate the statute from the project on the draft code and decided that states and not judges should write the articles dealing with procedure. As a result, the statute grew substantially in size. At the latter phases of the preparatory negotiations, a sentiment formed that it would have been preferable to move some of the provisions of the statute, particularly those dealing with procedural issues, to the Rules of Procedure and Evidence and address them in only a general fashion in the statute.

13 This is one of the important differences between the ICC and the two ad hoc Tribunals on the former Yugoslavia and Rwanda. Under Article 9 of the Statute of the Yugoslav Tribunal and Article 8 of that of the Rwanda Tribunal, in case of concurrent jurisdiction by the Tribunals and national courts, the Tribunals have primacy over national courts.

In the original request for the establishment of an international criminal court, Trinidad and Tobago’s concern was the inadequacy of national criminal laws and jurisdiction to deal with drug trafficking. See Letter from the Permanent Representative of Trinidad and Tobago, supra note.1. Some of the concerns of smaller states were that, in relation to certain crimes such as drug trafficking and terrorism, the fragile national courts could not withstand the power and terror that those involved in such activities could bring about, which could destabilize even governments themselves. An international criminal court could replace national courts on such prosecutions and remove the pressure from those courts. This idea was not acceptable to the great majority of the states negotiating the statute.

14 Even Article 103 of the UN Charter, in accordance with which the member states’ obligations under the Charter prevail over any other international obligations, will not direcdy overcome dlis problem. Article 103 binds the states but not the court. The court, under Article 17 of its statute, is obliged to determine that a case is inadmissible when certain conditions are met. The states in whose favor a decision of admissibility is made may then renounce their rights under the statute and consent to the court’s exercise of jurisdiction.

15 GA Res. 49/59, UN GAOR, 49th Sess., Supp. No. 49, at 299, UN Doc. A/49/49 (1994), reprinted in 34 ILM 482 (1995). Under Article 27, 22 ratifications were necessary for the Convention to enter into force. The 22d instrument of ratification was deposited by New Zealand on December 16, 1998, and the Convention entered into force on January 15, 1999.

16 UN Doc. A/CONF.183/2/Add.1 n.18 (1998).

17 Id., Art. 5, at 11.

18 See Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Res. E, UN Doc. A/CONF.183/10*, at 7 (1998) [hereinafter Final Act].

19 Dec. 9, 1948, 78 UNTS 277.

20 UN Doc. S/25704, annex, reprinted in 32 ILM 1192 (1993). For additional discussion, see the report by Darryl Robinson on the negotiation of the article on crimes against humanity, infra p. 43.

21 The Statute of the Yugoslav Tribunal in its Article 5 and the Statute of the Rwanda Tribunal in its Article 3 list the following acts as crimes against humanity: murder; extermination; enslavement; deportation; imprisonment; torture; rape; persecutions on political, racial and religious grounds; and other inhumane acts. For the Rwanda Statute, see SC Res. 955, annex (Nov. 8, 1994), reprinted in 33 ILM 1602 (1994).

22 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, June 8, 1977, 1125 UNTS 609 [hereinafter Protocol II].

23 See, respectively, [Geneva] Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 UST 3114, 75 UNTS 31; [Hague] Convention [No. IV] Respecting the Laws and Customs of War on Land, with annexed Regulations, Oct. 18, 1907, 36 Stat. 2277, 1 Bevans 631; and [Geneva] Convention Relative to the Treatment of Prisoners of War, July 18, 1929, 118 LNTS 303.

24 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, 1125 UNTS 3 [hereinafter Protocol I].

25 The four Geneva Conventions deal with the law of armed conflict of an international character and the protection of civilians. The Geneva Conventions are mostly concerned with the protection of persons in the power of a party to the hostilities. Article 3 of the four Geneva Conventions establishes standards for noninternational armed conflicts. Protocol I supplements the four Geneva Conventions for international armed conflicts. Protocol II deals with noninternational armed conflicts.

26 For the 1907 Hague Convention No. IV, see supra note 23. [Hague] Convention [No. II] with Respect to the Laws and Customs of War on Land, with annexed Regulations, July 29, 1899, 32 Stat. 1803, 1 Bevans 247; [Geneva] Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, supra note 23; [Geneva] Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 UST 3217, 75 UNTS 85; [Geneva] Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 UST 3316, 75 UNTS 135; [Geneva] Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 UST 3516, 75 UNTS 287. For Protocol I, see supra note 24; and for Protocol II, see supra note 22.

27 See “Elsewhere in the Statute,” UN Doc. A/CONF.183/2/Add.1, at 25 (1998).

28 Convention for the Protection of Cultural Property in the Event of Armed Conflict, May 14, 1954, 249 UNTS 240.

29 GA Res. 44/25, UN GAOR, 44th Sess., Supp. No. 49, at 166, UN Doc. A/44/49 (1989), reprinted in 28 ILM 1448 (1989), 29 id. at 1340 (1990).

30 See Final Act, supra note 18, Res. F, para. 6, at 9.

31 See UN Doc. A/CONF.183/2/Add.1, at 25, Art. Y (1998).

32 Crimes against humanity are not limited to those occurring during armed conflicts but also include those committed in time of peace and encompass other crimes covered by the Statutes of the two ad hoc Tribunals. Despite the original intention of including only war crimes under customary international law, some of the crimes found in Article 8 had not heretofore been recognized as customary. See the discussion on crimes against humanity and war crimes above.

33 Article 10 was negotiated at the last minute and is the only article in the statute without a title.

34 See ICC statute, supra note 9, Art. 25, para. 2(d).

35 GA Res. 52/164, UN GAOR, 52d Sess., Supp. No. 49, at 389, UN Doc. A/52/49 (1998). It was adopted on Jan. 9, 1998.

36 Convention drawn up on the basis of Article K.3 of the Treaty on European Union relating to Extradition between the Member States of the European Union, Sept. 27, 1996, 1996 O.J. (C 313) 3.

37 ICC statute, supra note 9, Art. 33, para. 2.

38 Id., Art. 25, para. 3(f).

39 Id., Art. 33, para. 2.

40 Id., Art. 36, para. 4(c).

41 Id., Art. 43, para. 4.

42 Id., Art. 50.

43 The pretrial chamber may review the decision by the prosecutor not to proceed with prosecution either at the request of the state concerned or the Security Council, if they had referred the matter to the court, or on its own initiative. Id., Art. 53, para. 3.

44 Id., Arts. 63–67.

45 Id., Art. 75, para. 2.

46 The following statement with regard to the noninclusion of the death penalty in the statute was read by the President of the Rome Conference on July 17, 1998, at the last meeting of the plenary:

The debate at this Conference on the issue of which penalties should be applied by the Court has shown that there is no international consensus on the inclusion or non-inclusion of the death penalty. However, in accordance with the principle of complementarity between the Court and national jurisdictions, national justice systems have the primary responsibility for investigating, prosecuting and punishing individuals, in accordance with their national laws, for crimes falling under the jurisdiction of the International Criminal Court. In this regard, the Court would clearly not be able to affect national policies in this field. It should be noted that not including the death penalty in the Statute would not in any way have a legal bearing on national legislation and practices with regard to the death penalty. Nor shall it be considered as influencing the development of customary international law or in any other way the legality of penalties imposed by national systems for serious crimes.

47 ICC statute, supra note 9, Art. 81.

48 Id., Art. 112.

49 Id., Art. 119.

50 Opened for signature May 23, 1969, Art. 19, 1155 UNTS 331.

51 ICC statute, supra note 9, Art. 121, para. 4.

52 Id., Art. 121, para. 6.

53 Id., Art. 121, para. 5.

54 Id., Art. 121, para. 4.

55 Id., Art. 125, para. 1. As of January 22, 1999, the following 71 states had signed the statute: Albania, Angola, Andorra, Antigua and Barbuda, Austria, Australia, Belgium, Bolivia, Burkina Faso, Cameroon, Canada, Chile, Colombia, Congo, Costa Rica, Côte d’lvoire, Croatia, Cyprus, Denmark, Djibouti, Ecuador, Eritrea, Finland, France, Gabon, Gambia, Georgia, Germany, Ghana, Greece, Honduras, Iceland, Ireland, Italy, Jordan, Kyrgyzstan, Lesotho, Liberia, Liechtenstein, Lithuania, Luxembourg, Madagascar, Mali, Malta, Mauritius, Monaco, Namibia, the Netherlands, New Zealand, Niger, Norway, Panama, Paraguay, Portugal, Samoa, San Marino, Senegal, Sierra Leone, Slovakia, Slovenia, the Solomon Islands, South Africa, Spain, Sweden, Switzerland, Tajikistan, The former Yugoslav Republic of Macedonia, the United Kingdom, Venezuela, Zambia, and Zimbabwe. The updated information on the status of signature and ratification of the statute is available at <http://www.un.org/DEPTS/Treaty>.

56 Res. F, supra note 30, para. 8.