Negotiations to establish an International Tribunal
In 1994, the United Nations General Assembly decided to pursue work towards the establishment of an international criminal court, taking the International Law Commission’s draft as a basis.136 It convened an Ad Hoc Committee, which met twice in 1995. Debates within the Ad Hoc Committee revealed rather profound differences among States about the complexion of the future court, and some delegations continued to contest the overall feasibility of the project, although their voices became more and more subdued as the negotiations progressed. The International Law Commission draft envisaged a court with primacy much like that of the ad hoc tribunals for the former Yugoslavia and Rwanda. If the court’s prosecutor chose to proceed with a case, domestic courts should not be able to preempt this by offering to do the job themselves. In meetings of the Ad Hoc Committee, a new concept reared its head, that of “complementarity” by which the court could only exercise jurisdiction if domestic courts were “unwilling or unable” to prosecute. Another departure of the Ad Hoc Committee from the International Law Commission draft was its insistence that the crimes within the court’s jurisdiction be defined in some detail and not simply enumerated. The International Law Commission had contented itself with listing the crimes subject to the court’s jurisdiction- war crimes, aggression, crimes against humanity and genocide – presumably because the draft code of crimes, on which it was also working, would provide the more comprehensive definitional aspects.
It had been hoped that the Ad Hoc Committee’s work would set the stage for a diplomatic conference where the statute could be adopted. But it became evident that this was premature. At its 1995 session, the General Assembly decided to convene a “Preparatory Committee”, inviting participation by Member States, none-governmental organizations and international organizations of various sorts. The PrepCom, as it became known, held two three-week sessions in 1996, presenting the General Assembly with a voluminous report comprising a hefty list of proposed amendments to the International Law Commission draft.137 It met again in 1997, this time holding three sessions. These were punctuated by informal inter-sessional meetings, of which the most important was surely that held in Zutphen, in the Netherlands in January 1998. The “Zutphen Draft” consolidated the various proposals into a more or less coherent text.138 The “Zutphen Draft” was reworked at the final session of the PrepCom, and then submitted for consideration by the Diplomatic Conference.
Pursuant to the General Assembly resolutions adopted in 1996 and 1997, the Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal convened in June 1998 in Rome, at the headquarters of the Food and Agriculture Organization
The Statute required sixty ratifications or accessions for “entry into force”. The date of entry into force – 1 July 2002 - is an important one, if only because the Court cannot prosecute crimes committed prior to this date of entry into force. Entry into force also began the real formalities of establishing the Court, such as the election of judges and Prosecutor. States were also invited to sign the Statute, which is a preliminary step indicating their intention to ratify. They were given until the end of 2000 to do so, and some 139 availed themselves of the opportunity. Even States that had voted against the Statute at the Rome Conference, such as the United States and Israel, ultimately decided to sign. Many of those which had abstained in the vote in July 1998 also signed. States wishing to join the Court who did not deposit their signatures by the 31 December 2000 deadline are said to accede to, rather than ratify, the Statute.
The pace of ratification was speedier and more dramatic than anyone had realistically expected. By the second anniversary of the adoption of the Statute, fourteen ratifications had been deposited. By the deadline of 31 December 2000, when the signature process ended, there were 27 parties. On the third anniversary of adoption, the total stood at 37. Today there are over a hundred.
The Assembly of States Parties was promptly convened for its first session, which was held in September 2002. The Assembly formally adopted the Elements of Crimes and the Rules of Procedure and Evidence in versions unchanged from those that had been approved by the PrepCom two years earlier.
A number of other important instruments were also adopted, and plans made for the election of the eighteen judges and the Prosecutor. Elections of judges were completed by the Assembly during the first week of February 2003, at its resumed first session. In a totally unprecedented development for international courts and tribunals, more than one-third of the judges elected in February 2003 were women.139
The first Prosecutor, Luis Moreno-Ocampo of Argentina, was elected in April 2003.
Structure of the Court
The Presidency is responsible for the overall administration of the Court, with the exception of the Office of the Prosecutor, and for specific functions assigned to the Presidency in accordance with the Statute. The Presidency is composed of three judges of the Court, elected to the Presidency by their fellow judges, for a term of three years.140
The Judicial Division consists of eighteen judges organized into the Pre-Trial Division, the Trial Division and the Appeals Division. The judges of each Division sit in Chambers which are responsible for conducting the proceeding of the Court at different stages. Assignment of the judges to Divisions is made on the basis of the nature of the functions each Division performs and the qualifications and experience of the judge. This is done in a manner ensuring that each Division benefits from an appropriate combination of expertise in criminal law and procedure and international law.141
Office of the Prosecutor
The office of the Prosecutor is responsible for receiving referrals and any substantiated information on crimes within the jurisdiction of the Court, for examining them and for conducting investigations and prosecution before the Court. The office is headed by the Prosecutor, who is elected by the States parties for a term of nine years. The Prosecutor is assisted by two Deputy Prosecutors, one with responsibility for investigations and the other for prosecution.
The Registry is responsible for the non-judicial aspects of the administration and servicing of the Court. The Registry is headed by the Registrar who is the principal administrative officer of the Court. The Registrar exercises his or her functions under the authority of the President of the Court. The Registrar elected by the judges for a term of five years.
Jurisdiction and Admissibility of the Court
The Statute provides a framework for determining whether the national justice system is “unwilling or unable genuinely” to proceed with a case.
With respect to inability, Article 17(2) declares that “having regard to the principles of due process recognized by international law; the Court is to consider whether the purpose of the national proceedings was to shelter an offender, whether thy have been unjustifiably delayed, and whether they were not conducted independently or impartially”, and that “they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice”. Article 17(3) says that, in ruling on inability, the Court is to consider “whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings”.142
The key word is “complementarity”, a term that does not in fact appear anywhere in the Statute. However, Paragraph 10 of the preamble says that “the International Criminal Court established under this Statute shall be complementary to national criminal jurisdiction”, and Article 1 reiterates this.
The Court is a prospective institution in that it can not exercise jurisdiction over crimes committed prior to the entry into force of the Statute. In this respect, it differs from all of its predecessors. Previous international criminal tribunals were established primarily to deal with atrocities committed prior to their creation, although they have also been given a prospective jurisdiction.
The Court has jurisdiction over crimes committed on the territory of States Parties, regardless of nationality of the offender. This general principle is set out in Article 12(2) (a) of the Statute. It also has jurisdiction over crimes committed on the territory of State that accept its jurisdiction on an ad hoc basis, in accordance with Article 12(3).
Acceptance of jurisdiction by a Non-Party State
In addition to the territorial and personal jurisdiction that results from ratification of the Statute with respect to a State Party, Article 12(3) also contemplates the possibility of a non-party state accepting the jurisdiction of the Court on an ad hoc basis. The provision requires such a state to lodge a declaration with the Registrar by which it accepts the exercise of jurisdiction by the Court “with respect to the crime in question”. The Statute describes such a state as an “accepting state”. The final sentence in Article 12(3) says that “the accepting state shall cooperate with the Court without any delay or exception in accordance with Para 9”. However, there does not seem to be any consequence should an accepting state fail to cooperate as required.143
The word Genocide was coined in 1944 by Raphael Lemkin in his book on Nazi crimes in occupied Europe.144 Lemkin felt that the treaty regime aimed at the protection of national minorities established between the two world wars had important shortcomings, amongst them the failure to provide for prosecution of crimes against groups. The term “genocide” was adopted the following year by the prosecutors at Nuremberg (although not by the judges), and in 1946 genocide was declared an international crime by the General Assembly of the United Nations.145
Genocide is defined in Article 6 of the Rome Statute. The provision is essentially a copy of Article II of the Genocide Convention.
The lengthiest provision defining offences within the jurisdiction of the International criminal Court is Article 8, entitled “War Crimes”. This is certainly the oldest of the four categories. War crimes have been punished as domestic offences probably since the beginning of criminal law.146
Crimes against humanity
Although occasional references to the expression “crimes against humanity” can be found dating back to several centuries, the term was first used in its contemporary context in 1915.
Article 7 of the Rome Statute begins with an introductory paragraph or chapeau stating : “For the purpose of this Statute, ‘crimes against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack”.
It was principally the non-aligned countries who insisted that aggression remain within the jurisdiction of the Court. These states pursued a “compromise on the addition of aggression as a generic crime pending the definition of its elements by a preparatory committee or a review conference at a later stage”.147 The Bureau of the Rome Conference suggested in July 1998 that, if generally accepted provisions and definitions were not developed forthwith, aggression would have to be dropped from the Statute. This provoked much discontent among the delegates, and forced the Bureau to reconsider the matter. Literally on the final day of the conference, agreement was reached that authorizes the Court to exercise jurisdiction over aggression, but only after the crime is defined and its scope designated in a manner consistent with the purpose of the Statute and the ideals of the United Nations. It is important to note that, though Article 5(1) (d) of the Statute lists “the crime of aggression” as one of four crimes within the jurisdiction of the Court, no definition of aggression has yet been agreed upon.
The Court is also given jurisdiction over what are called “offences against the administration of justice”, when these relate to proceedings before the Court.148 The Statute specifies that such offences must be committed intentionally. These are: perjury or the presentation of evidence known to be false or forged; influencing or interfering with witnesses; corrupting or bribing officials of the Court or relating against them; and, in the case of officials of the Court, soliciting or accepting bribes. The Court can impose a term of imprisonment of up to five years or a fine upon conviction. States parties are obliged to provide for criminal offences of the same nature with respect to offences against the administration of justice that are committed on their territory or by their nationals.
The Working of the Court
The jurisdiction of the Court may be triggered by on of the three sources: a State Party, the Security Council, or the Prosecutor himself. Once the jurisdiction has been triggered, the Prosecutor analyses the information in order to determine whether or not to “initiate an investigation”. When the Prosecutor is acting pursuant to his proprio motu powers, as set out in Article 15, he is to determine whether or not a “reasonable basis” exists for proceeding, and then seek the authorization of the Pre–Trial Chamber in order to “initiate an investigation”. When a State Party or the Security Council is the trigger, he still determines at a preliminary stage whether there is “reasonable basis” to proceed. This first stage in the proceedings is termed “preliminary examination” when the Prosecutor is acting pursuant to his proprio motu powers, and a “pre-investigative phase” when the matter is the result of a referral by the Security Council or a State Party.
The Prosecutor has “duties and powers” with respect to an investigation. He is required “to cover all facts and evidence relevant to an assessment of whether there is criminal responsibility under this Statute, and, in doing so, investigate incriminating and exonerating circumstances equally”. The wording suggests a Prosecutor with a high level of neutrality and impartiality. Such a Prosecutor is rather more like the investigating magistrate or juge d’instruction of the continental legal system than the adversarial prosecuting attorney of the common law system.
Once the Pre-Trial Chamber has determined there is “sufficient evidence” to establish substantial grounds to believe that the person committed each the crimes charged the accused is then committed for trial. The Pre-Trial Chamber’s work is complete. The Presidency is required to constitute a Trial Chamber, and to refer the case to it. The Trial Chamber convenes a status conference “promptly”, in order to set the date for trial. The Trial Chamber is also required to confer with the parties so as to adopt procedures to facilitate the fair and expeditious conduct of the proceedings and to determine the language or languages to be used at trial
Trial and appeal
Although much of the procedure of the Court is a hybrid of different judicial systems, it seems clear that there is a definite tilt towards the common law approach of an adversarial trial hearing. However, the exact coloring that the Court may take will ultimately be determined by its judges.
The trial is to take place at the seat of the Court, in The Hague, unless otherwise decided.149 Already, the Court has contemplated the possibility of holding proceedings elsewhere.150 The trial shall be held in public, something that is expressed both as a duty of the Trial Chamber and as a right of the accused. Nevertheless, the Trial Chamber may depart from the general principle of a public hearing. Article 64(7) explicitly allows in camera proceedings for the protection of victims and witnesses, or to protect confidential or sensitive information to be given in evidence.
Reservations due to National Sovereignty
United States concerns about foreign and military activities
In 1998, the United States was one of seven countries to vote against the adoption of the ICC Statute. One of the central reasons for its opposition is the ICC’s potential to undercut US foreign and military activities. This concern converges with a deep-seated suspicion against external checks on legislative or executive independence. Debates on the ICC have been vehement, and the ICC generated so much opposition that a Republican Congressman introduced a bill entitled the “American Servicemen’s Protection Act” (ASPA) which would deny US aid to any nation that cooperates with the ICC, in order to prevent any possibility of a US citizen coming before the ICC. Even prior to entry into force, it became increasingly clear that a show-down was looming between the United States and the Court. During the negotiations to establish the Court, the United States had made many constructive contributions. Nevertheless, it was unhappy with the final result. Many assessments of the position of the United States often reduce it to the simple proposition that Washington wanted to protect its own citizens from the jurisdiction of the Court. In an official statement, one American diplomat said; “the United States respects the decision of those nations who have chosen to join the ICC; but they in turn must respect our decision not to join the ICC or place our citizens under the jurisdiction of the Court”.151 This is, of course, a perfectly logical response by Washington to a Court that it does not like.
The US also tried to sanctify the ASPA provisions in a Security Council resolution on peacekeeping. While it succeeded initially, the general discontent with this course of action led to the Resolution being dropped when its initial term expired.
The European Union concerns about national sovereignty
Most European countries appear far less concerned with the ICC’s potential incursions into national sovereignty. Perhaps this is due to the acceptance of trans-national bodies such as the European Union and the European Court of Human Rights, or to widespread support for such an institution due to historical realities. In any event, Germany, Austria, and the Netherlands, amongst several others, took the lead in drafting provisions throughout the negotiations in order to secure a strong ICC, and all voted in favor of the final Statute. Eight of the European Union’s fifteen members have already ratified the ICC Statute.
State Party referral
When the Rome Statute was being drafted, referral of a situation by a State Party was thought to have the least potential for making the Court operational. It was frequently pointed out that States were notoriously reluctant to complain against other states on a bilateral basis, unless they had vital interest at stake. They would not, however, be likely to act as international altruists, submitting petitions alleging that other states were committing international crimes. In support, the atrophied provisions of international human rights treaties establishing inter-state complaint mechanisms were cited. Most of these have never been used.152
The main exception is the European Convention on Human Rights, but even its inter-state complaint provision has rarely been invoked. Its handful of major cases have involved Cyprus against Turkey and Ireland against the United Kingdom, and tend to confirm the observation that these remedies are only invoked when there is a genuine dispute between the two states concerned, generally about treatment accord to the nationals or the property of the complaining State. States that desire the Court to take up a matter are more likely to lobby the Prosecutor than to launch the proceedings formally themselves.
It was astonishing, therefore, and completely unexpected, when the State Party referral mechanism became the source of the first two situations to be triggered before the Court. The mechanism did not, however, operate as was intended. These were not inter-State complaints at all. Rather, the State in question referred a “situation" within its own borders. These quickly became known as “self-referral”.153Article 14 of the Rome Statute sets out the terms of referral of a “situation” by a State Party:
A State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes.
The relationship between the Security Council and the ICC has proved to be one of the most controversial aspects of the Rome Statute. This relationship was initially outlined in Article 23 of the International Law Commission’s 1994 views. While partially settled through the adoption of Articles 5, 13(b) and 16 of the Statute,154 the debate over the role of the Security Council in respect of crime of aggression - a debate which was postponed in Rome - is at present still continuing.
The linkage between political and judicial organs is based on the recognition that the functions of the ICC and the Council are complementary in respect of four crimes over which the Court assumes jurisdiction. Unlike the case of State Party referral, there is no detailed provision in the Statute concerning Security Council referral. The provision governing Security Council referral was part of the 1994 International Law Commission draft, and did not undergo any significant change during the negotiations process. Though the ICC has its own treaty basis it will have a formal relationship with the United Nations. The Rome Statute further engages the Security Council in the process of institutionalizing criminal responsibility. It avoids the original pitfalls and potentially wide-reaching implications for criminal law enforcement of the original LIC draft. However, it likewise embeds the Council’s discretionary determinations under Article 39 within the Court’s procedures, with potentially important implications for the legal position of individuals.
Under the Rome Statute, the Council has been given powers of referral and deferral in respect of Court proceedings and a potential role in the determination of the crime of aggression. It has also been enlisted as an enforcement mechanism in ensuring the cooperation of states with the Court.
The question of the links between the Security Council and the International Criminal Court goes beyond the Statute itself. One issue concerns the relationship between political and judicial bodies when the former acts in a quasi-judicial capacity.
Undoubtedly, the fields of operation ratione materiae of the Security Council and the Court overlap. It is therefore important to ensure that the role the Council is called on to play in the ICC does not serve to obstruct the judicial integrity of the Court. This is an important factor in modeling a workable relationship between the Council and the ICC.
Passive and Proactive Complementarity
The concept of proactive complementarity differs considerably from the understanding of complementarity articulated at the time of the drafting of the Rome Statute in 1998 and in the Court’s practice to date. Compared to proactive complementarity, the Court’s current practice and the understanding of the drafters might better be termed “passive complementarity”. The complementarity provisions of the Rome Statute, at least as understood in 1998, highlight the Court’s role as a backstop to national jurisdiction.
Passive complementarity suggests that the ICC would step into undertake its own prosecution only where national governments fail to prosecute and where the Court has jurisdiction.155 The ICC, it was thought, would simply substitute an international forum for a domestic one. In contrast to passive complementarity, proactive complementarity recognizes that the ICC can and should encourage, and perhaps even assist, national governments to prosecute international crimes.
Proactive complementarity builds on the fact that the Rome Statute does far more than merely define the limits of the Court’s power. The Statute creates a system of judicial enforcement for the prosecution of the most serious international crimes at both the domestic and international levels of governance. The Statute also affirms the duties and rights of both national governments and the ICC to prosecute such crimes and reifies the obligations of States to assist the ICC in its own investigations and prosecutions. In so doing, the Rome Statute creates a tiered system of prosecution authority that could be characterized as the “Rome System of Justice”. Within this system, both the domestic and international levels of governance have interrelated international legal duties to provide accountability for international crimes.
As a strategy for encouraging national governments to undertake their own prosecutions of international crimes, proactive complementarity would allow the Court to catalyze national jurisdiction to fulfill their own obligations to prosecute international crimes. Those obligations are found in a wide range of international treaties, including the Geneva Conventions of 1949 and the Genocide Convention, and such obligations are reaffirmed in the preamble to the Rome Statute itself. Specifically, a strategy of proactive complementarity would use the Court’s legal and political powers to activate states’ domestic courts in international criminal prosecutions. The admissibility requirements of Article 17 of the Rome Statute do not merely limit the cases the ICC can hear; rather, they regulate the allocation of authority between States and the ICC. Article 17 recognizes the shared competence, and perhaps even common duty, of national and international institutions to help bring about an end to impunity. In the Rome System, then, the ICC and national governments are engaged in a broad set of interactions directed toward accountability for international crimes.
Proactive complementarity derives its force from this broad perspective on the Rome System of Justice since it utilizes the potential for the ICC to encourage domestic prosecutions and contribute to the effective functioning of national judiciaries. Such a policy could produce a virtuous circle in which the Court stimulates the exercise of domestic jurisdiction through the threat of international intervention. As a result, the Court would not have to undertake prosecutions of at least some cases itself and could focus its energy and resources on those cases in which there is no available domestic alternative, thereby maximizing its contribution to the statutory goal of ending impunity.
For the ICC to meet its mandate and to fulfill expectations, the Prosecutor’s early rhetoric encouraging domestic prosecutions must be transformed into a formal policy of proactive complementarity that would structure the ICC, s interactions with national governments. Specifically, a strategy of proactive complementarity would draw upon the fact that the potential for intervention by the ICC, if backed by a strong track record of investigations and prosecuting the most serious crimes within the Court’s jurisdiction, will often have a catalytic influence on national governments.
The possibility of international prosecution can create incentives that make states more willing to investigate and prosecute international crimes themselves. Likewise, proactive complementarity recognizes that some outside assistance may allow States to undertake prosecutions when they lack the means to do so alone. Finally, proactive complementarity can shift both expectations and burden of action back to States, which after all, have the primary legal obligations to prosecute international crimes.156
Just as proactive complementarity offers a potentially effective and efficient means of allowing the ICC to fulfill its mandate; its implementation raises new questions for the Court. These include the development of useable tactics of political influence, the practical difficulties of coordinating with national governments, the legal dangers around compromising a case’s subsequent admissibility before the ICC.
A policy of proactive complementarity and the full activation of the Rome System of Justice offer the most effective, and perhaps the only, way for the ICC to meet its mandate and expectations. In particular, as the 2009 Review Conference approaches, if the Court is to avoid an early and visible failure, the formal adoption of a policy of proactive complementarity is an urgent imperative.157
Asserting that proactive complementarity would go far to remedy the misalignment of expectations and resources available to the ICC.
National Amnesties and Immunities
Recent attempts to indict and prosecute heads of State such as Augusto Pinochet, Slobodan Milosevic and Ariel Sharon are bringing the full potential of an enforceable international criminal regime into focus. It is likely that the ICC will further this development, since the ICC Statute applies equally to Heads of State, members of government, elected representatives and government officials. Article 27 also provides that the ICC will not be barred from exercising its jurisdiction due to immunities or special procedural rules which apply under national or international law. This provision is consistent with recent developments in International Criminal Law, which limit the scope of head of State immunities in recognizing that certain acts, such as torture, forced disappearances and other mass atrocities, are outside of the scope of the immunity afforded to leaders.
Despite the clarity of Article 27, a number of provisions dilute the ICC’s ability to try Heads of State. Article 89 provides that the ICC cannot proceed with the surrender of an individual held by a third party State if it would be inconsistent with State’s international law obligations regarding diplomatic immunity, unless the third State waives the immunity. Furthermore, in negotiations subsequent to the Rome Conference in 1998, a number of States have made a considerable effort to further restrict the ICC’s ability to override national immunities.