The International Criminal Court

Dawn Rothe
Western Michigan University
2003

This Web page contains excerpts from earlier works. For a complete account, my thesis is available at Western Michigan University, Waldo Library.

Introduction

The Rome Statute of the International Criminal Court is hailed as the most significant development in international law to date. The development of the Rome Statute was a decade long process, eventually leading to official adoption in Rome on July 17, 1998.  On July 1, 2002 the International Criminal Court became a reality with more than 120 nation/states attending the convention of the Rome Statute. Currently, 139 nation/states have endorsed the Rome Statute and 90 states have become ratified members of the ICC. A century long struggle to establish an international system of justice has been achieved.

Structure and Function of the ICC

The ICC consists of 4 Chambers: (1) the Presidency; (2) Judicial Court (An Appeals Chamber, Trial Chamber, and a Pre-Trial Chamber); (3) Office of the Prosecutor; and (4) the Registry. The Presidency is an elected office serving terms of three years and holds responsibility for the administrative duties of the court, excluding the office of the Prosecutor. [1]   The functions of the Judicial Court are divided into Chambers, which allows the judges to be on more than one chamber if it serves the functioning of the court in a more efficient manner. The Appellate Chamber is exempt from this however, as an Appellate Judge is prohibited from serving on other chambers (Article 39, Rome Statute).

 The office of the Prosecutor is a separate division of the Court that has the responsibility for the investigation of referrals on crimes covered by the ICC. The Prosecutor has full authority over the administration of the Prosecutorial Division (Article 42, Rome Statute).  Cases brought to the ICC will be handled independently by this office, unlike the system used by the United NationsÕ Security Council where there must be joint agreement to charges brought forth against individuals for crimes covered under international laws and treatises.  A state may refer cases to the Prosecution, or the Prosecutor can initiate the investigation based on information of a crime being committed within the jurisdiction of the Court (Article 14 and15 Rome Statute). The Assembly of State Parties (ASP) will further define the relationship agreement between the United Nations and the Court over disputes regarding how referrals will proceed and if the wording of the Rome Statute will allow an advisory opinion from the International Court of Justice, especially regarding the Acts of Aggression (Coalition for International Criminal Court- CICC 6,2002).

The Registry is solely responsible for the administrative and non-judicial aspects of the Court and for creating a Victims and Witness Unit providing protective and security measures for witnesses, victims or others at risk due to testimony given to the court (Article 43 Rome Statute). 

The intention of the ICC is to provide an international system of justice that would address heinous crimes against humanity when a state is unable or unwilling to investigate or prosecute any individual accused of the crimes specified in the Rome Statute (Mullins, Kauzlarich, and Rothe 2002). Crimes that are subject for prosecution under the Rome Statute are defined in Articles 5, 6, 7, and 8.

Article 5 of the Rome Statute lists the crimes within the jurisdiction of the ICC: crimes of genocide, crimes against humanity, war crimes, and crimes of aggression still to be defined by the ASP (Article 5, paragraph 2, Rome Statute). Crimes of genocide refer to "acts committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group" (Article 6, Rome Statute). Article 7 defines crimes against humanity as acts that are widespread or a systematic attack against a civilian population. This includes acts of torture, intentional causing of great suffering to body or mental health, murder, and attacks directed against a civilian population.  Crimes against humanity are not as inclusive as previously recognized Human Rights Law (HRL).  The HRL applies in times of peace or war but is primarily conscious of protecting people against governmental violence against their recognized civil, political, economic, social, and cultural rights (Universal Declaration of Human Rights, GA. Res.217A (III0, UN Doc A/810 at 71 (1948)). War crimes are defined by breaches of the Geneva Conventions of 8/1949 (Article 8, Rome Statute). These include torture or inhumane treatment, biological experiments, extensive destruction and appropriation of property, and willfully denying a prisoner of war or other protected person the right to a fair and regular trial.

The ICC is limited in its investigative reach, being unable to subpoena any state or their records. While the Court may request a warrant or subpoena, the Prosecutor and the Court lack an empowered policing agency to ensure the fulfillment of either request (Article 54-58 Rome Statute).  The Prosecutor is limited to requesting the presence of persons being investigated, victims, and witnesses. The Court must seek the cooperation of a state in fulfilling the ProsecutorÕs requests. It must rely on the compliance of a state or state party to relinquish any evidence, suspects, or witnesses that are relevant to the ongoing investigations carried out by the Prosecutorial Branch. The Court is unable to enforce its decisions without voluntary state compliance. 

The Court has limited jurisdiction, inclusive only of a state party to the treaty or by agreement of a state not a party to the Statute.  The criteria listed in Article 12 for the exercise of jurisdiction requires a state to become a party to the statute or accept the jurisdiction of the Court if the crime occurred on the State territory, its vessel, or aircraft, or if the State of which a person accused is a national (Article 12,a-b). No person can be held liable by the court unless the crime occurred within the jurisdiction of the court.  Compliance by a non-party state is highly unlikely and non-compliance can act as a detriment to the ability of the ICC to be an effective measure of international justice (Mullins, Kauzlarich, and Rothe, 2002). 

The Rome Statute of the ICC: Descriptive Information

The Rome Statute required sixty states to become signatories by December 31^st 2000 (Article 126) for the Statute to enter force. That goal was far exceeded with 139 state signatories at the closing date.

The ICC consists of 81 states forming the Assembly of States Parties (ASP) to the Rome Statue. The endorsement of the Rome Statute requires states to be signatories and ratified members. The ratification of a stateÕs signature varies with each stateÕs domestic legal system (e.g. the US would need the approval of the Senate for the international signature to be ratified). Support of the ICC stands to become stronger as the 139 states that have endorsed the Rome Statue with their signature become ratified members (90 states have become ratified members as of 5/2003) in accordance with their domestic legal systems. This number excludes the two states that were signatories but withdrew all support for the ICC: the US and Israel.  A few states have failed to become signatories due to domestic strife, but are willing to participate in the ICC, such as Kazakhstan, Indonesia, and Malaysia. Other states are adamantly opposed to the ICC such as the Libyan Arab Jamchiriya, India, Pakistan, Saudi Arabia, Turkey, Iraq, and Myanmar.

The Assembly of States Parties (ASP) met from September 3-10, 2002 to establish the ongoing agenda, Rules of Procedures, and to elect members of the Bureau Tasks. In February 2003, the Assembly of States Parties began their first session to elect the eighteen judges of the Court. The newly elected judges then appointed the first President of the ICC, the Vice-President, and the second Vice-President. The Prosecutor was sworn in on 16 June 2003 followed by the Registrar on 3 July 2003 (CICC, 2003). On the first year anniversary of the establishment of an ICC all Senior Officials had been elected. The court is currently near completion of staff and able to proceed as an international system of justice. The culmination of a century of aborted attempts and contentious efforts had finally been achieved. Albeit, the end result of an ICC is less than many states had once fought for (universal jurisdiction and empowerment) it nonetheless represents a significant change for international relations and international law. The Preamble to the Rome Statute states that it is:

Mindful that during this century millions of children, women, and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity, affirming that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and enhancing international cooperation, determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimesÉdetermined to these ends and for the sake of present and future generations, to establish an independent permanent International Criminal Court with jurisdiction over the most serious crimes of concern to the international community as a whole (Rome Statute, July 1999).

Conclusion

The mission statement of the Rome Statute personifies the new ideology of an international society (with common goals, values, and interests) and the ideological principle of universal jurisdiction (the Rome statute describes an ability to have jurisdiction over the most serious crimes but realistically has limited jurisdiction). Indeed, the ICC does represent a change in international relations and international law. The potential of the ICC to fulfill its mission to end impunity or to be seen as a legitimate body of justice is hitherto unbeknownst. The hope lies in the potential for the ICC to be malleable (Article 123) and to eventually fulfill the role of a universal system of justice, free from the inherent political nature of international law and international society. The ICC has the potential to change interstate power relations. The "weaker" states have for the first time a direct connection to the Court as a member for legal settlements or charges against more powerful states. The potential to balance the power differentials of the international society is a promising possibility for the Court. The pessimism lies in understanding the fundamental contradictions of an international society with independent states, divergent political, economic, cultural, and religious diversity coupled with an ideology of one society standing united under the rule of law based on universality.

Links To Other Sources Online for the ICC:

Amnesty International (2002). Available on-line at: http://web.amnesty.org/

Coalition for the International Criminal Court. International Criminal Court Homepage (2002) Online http://www.ICCNOW.org/html/country.html

International Criminal Court Monitor. (2002) Online at http://www.iccnow.org

International Criminal Court Documents. (2002) Online http://www.ICCNOW.org/html/new.html

United Nations Library, ONLINE. http://www.un.org/Depts/dhl (2001). Open Documents-May 1996, 1998 archives, 1999 Annual Report, council-meeting.

Online:http://web.amnesty.org/ai.nsf/COUNTRIES%2FUSA?OpenView&Start=1.151&Count=30&

Other Recommended Sources:

Bassiouni, M. (1998). The Statute of the International Criminal Court. Transnational Publishers, Inc. Ardsley, NY.

Cassesse, A. (2002). The Rome Statute of the International Criminal Court: A Commentary. Vol. I. Oxford Press.

Cassesse, A. (2002). The Rome Statute of the International Criminal Court: A Commentary. Vol. II. Oxford Press.

Cassesse, A. (2002). The Rome Statute of the International Criminal Court: A Commentary. Vol. III. Materials. Oxford Press.

Mullins, C , David Kauzlarich and Dawn Rothe (2002). ">The International Criminal Court and the Control of State Crime: Problems and Prospects". Presented at American Society of Criminology, Chicago, IL November, 2002.

Sadat, L. (2002). The International criminal Court and the Transformation of International Law: Justice For the New Millennium. Transnational Publishers, Ardsley, NY.

Shelton, D. (2000). International Crimes, Peace, and Human Rights: The Role of the International Criminal Court. Transnational Publishers, Inc. US.