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International Criminal Court

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The International Criminal Court is an international court which came into existence in July 2002 to try those accused of war crimes, crimes against humanity and genocide. The court, which has yet to begin operations, is opposed by the United States and Israel, both of whom fear that their enemies would abuse the court by selectively targetting Americans and Israelis.

Historical Background

The first international court to try war crimes was the International Military Tribunal (IMT) which held the Nuremburg Trials, the trial of major Nazi war criminals after World War II. The United Nations General Assembly instructed the International Law Commission (ILC) to develop a code setting out the legal principles behind the IMT, which it did; the ILC also developed in the 1950s a proposal for the creation of a permanent international tribunal to try war crimes in the future, but the General Assembly did not take up the proposal at the time due to the onset of the Cold War.

The world did not see another international court for trying these crimes until after the Cold War ended. In response to the wars in the Former Yugoslavia, and the genocide in Rwanda, the United Nations Security Council established the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda.

Development of the ICC

Subsequently, it was desired to create a permanent tribunal, so that an ad hoc tribunal would not have to be created after each occurence of these crimes. Therefore the General Assembly requested the ILC to update its earlier proposal, which it then presented to the General Assembly.

The General Assembly called the United Nations Diplomatic Conference of Plenipotentaries on the Establishment of an International Criminal Court, in Rome, Italy, where the Rome Statute of the International Criminal Court was adopted, July 17 1998. Almost all states participating voted in favour of the Statute; the United States, Israel, China, Cuba, Iran, Libya and North Korea voted against. The United States and Israel went on to sign the Statute just before the deadline to do so; neither seems likely to ratify it in the near future.

The Statute became a binding treaty after it received its 60th ratification, which was deposited at a ceremony at United Nations Headquarters on 11 April 2002. In fact, ten countries (Bosnia-Herzegovina, Bulgaria, Cambodia, Democratic Republic of Congo, Ireland, Jordan, Mongolia, Niger, Romania and Slovakia) submitted their ratifications at this time, bringing the total to 66, so that no one nation would hold the honor of depositing the 60th ratification. The ICC will legally come into existence, on 1 July 2002. When established, the ICC will have its headquarters in The Hague, Netherlands; but it claims the right to hold its proceedings anywhere.

As of 1 July 2002, 139 nations have signed the Statute, and 76 have ratified or acceeded to it.

The court is expected to become operational once the signatory nations have met in the Assembly of State Parties to appoint a prosecutor and judges. This is expected to occur in 2003.

Structure and powers

The Statute provides that the ICC shall have the power to try individuals for war crimes, crimes against humanity and genocide. It claims ICC jurisdiction over offences committed on the territory of a state, by a national of a state, over crimes committed by any person when granted jurisdiction by the UN Security Council, and over crimes committed by nationals of a non-state party or on the territory of a non-state party where that state party has entered into an agreement with the court providing for it to have such jurisdiction in a particular case. The Statute specifically rejects the claim that citizens of non-ratifying countries are not subject to the court's jurisdiction.

Many states supported providing the ICC with jurisdiction over the crimes of "aggression", "terrorism" and drug trafficking; however other states opposed this, on the grounds that these crimes were difficult to define, and that providing jurisdiction over less serious crimes such as terrorism and drug trafficking would distract from the seriousness of the crimes the ICC was established to deal with. As a compromise, the Statute provides the ICC with jursidiction over aggression, but only once an amendment to the Statute is adopted defining it; and it provides that it may also be amended to expand its jurisdiction to include other crimes. But no amendments can be made until seven years after the Statute's entry into force.

The International Criminal Court is composed of the Court itself, divided into a number of chambers (Pre-Trial, Trial and Appallate), the Registry, the Office of the Prosecutor and the Assembly of State Parties. Although the initial impetus for its establishment came from within the United Nations, it is legally a separate entity, and not a United Nations institution, since unlike the ICTY and ICTR it was established by a separate treaty between states, and not the Security Council acting under the United Nations Charter. Its relationship with the United Nations will be governed by an agreement to be enterred into between the Court and the United Nations, which will likely provide mainly for Security Council referrals under the Rome Statute, and for the United Nations to pay for any prosecutions made under such a referral.

Opposition by the US, Israel and other countries

Some countries object to the court, saying that there is very little legal supervision of the court's apparatus, and that the court's verdicts may become subject to political motives. They argue that the court's mandate is already excessively wide (and will be even more so if the crime of aggression is defined in its Statue), meaning the court could (perhaps unwillingly) become a tool for barratry and pointless legal hassle. Most other states consider that the checks and balances in the ICC make this an unlikely possibility.

The United States initially signed the statute under the Bill Clinton administration, but under George W. Bush withdrew its signature. It long opposed the Statute based on fears that the American soldiers and political leaders may be subject to "frivolous or political motivated prosecutions". Some individuals within the U.S. have publically complained about the United Nation's definition of genocide, which includes "serious bodily or mental harm" and leaves vague the definition of mental harm; moreover, it sets the numerical threshold as low as a single member of another group. It then attempted to negotiate an agreement that US nationals could not be tried by the ICC. It signed the ICC Statute at the last minute, primarily so that it could continue to take part in negotiations on the rules of procedure for the new court, in an attempt to obtain an exemption for US nationals.

On the 6 May 2002, the United States informed the United Nations Secretary-General that "the United States does not intend to become a party to the treaty. Accordingly, the United States has no legal obligations arising from its signature on December 31, 2000." This was widely described as "unsigning" the treaty or "withdrawing" the United States' signature, although the United States in its letter did not use that terminology, and the United Nations has not removed the name of the United States from the official list of signatories.

Furthermore, the 2002 "American Servicemembers' Protection Act" contained provisions prohibiting U.S. co-operation with the Court, and permitting the President to authorize military force to free any US military personnel held by the court, leading opponents to dub it "The Hague Invasion Act." The act was later modified to permit US cooperation with the ICC when dealing with US enemies.

Israel objects to the Statute because one of the war crimes the ICC is granted jurisdiction over is "the war crime of the transfer of parts of the civilian population of an occupying power into occupied territory". Israel fears this provision will be used to prosecute Israeli settlers, or Israeli government officials who support the policy of settlements, as war crimes, in spite of the fact that the the settlers came to settle out of their free will, and in most cases obtained land for settlements lawfully. But in theory it supports the idea of the ICC, because of the Jewish experience during the Holocaust of being victims of the crimes the ICC is being established to deal with.

China has expressed opposition to even the other states involved going ahead with it, claiming that the Statute is an attempt to interfere with the domestic affairs of sovereign states.

The United States' objection is that the Statute provides the court with jurisdiction over nationals of non-State parties for crimes committed on the territory of a State Party. The United States claims this amounts to the treaty binding non-State parties, and under international law only parties to a treaty can be bound by it. Supporters of the Court counter that under international law that states have the right to try foreign nationals for crimes committed on their territory; and if a state has the right to exercise jurisdiction in this case, that state can request an international organization to exercise that jurisdiction on its behalf by means of the treaty establishing that organization - traditionally in international law, international organizations are considered to be instruments through which their member states act. Providing the ICC with jursdiction over US nationals in this case would not interfere with US sovereignty, say ICC proponents. Some have, however, argued that ther territorial jurisdiction is non-delegable (see Madeline Morris, High crimes and misconceptions: the ICC and non-party states, Law and Contemporary Problems, Winter 2001 vol. 64 no. 1 p. 13ff).

Additionally, some have argued that the crimes the ICC has jurisdiction over are recognized under international law as crimes of universal jurisdiction, meaning that any state may try individuals who commit these crimes, even if they are committed by foreign nationals on foreign territory. From this perspective, the State parties could therefore have authorised the ICC to exercise this universal jurisdiction on their behalf. However, not all the crimes for which the Rome Statute provides the court with jurisdiction are generally accepted as being subject to universal jurisdiction at the present time under customary international law, and some have argued that even where universal jurisdiction exists it is non-delegable (see Morris, ibid.)

The Web site of ICC -- http://www.un.org/law/icc/ The Coalition for the International Criminal Court -- http://www.iccnow.org

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