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International Criminal Court

The International Criminal Court (ICC) is a permanent tribunal created to prosecute and try individuals for the crime of genocide, crimes against humanity, and war crimes. The court was created in part through cooperation with the United Nations General Assembly, but without the involvement of the Security Council. The ICC is the first such court to exist as a treaty arrangement between member states, and not as a creation of the UN. It opened on 11 March 2003 with the swearing in of its bench of 18 judges. The creation and existence of the court has been somewhat controversial, with the largest disagreement surrounding the source and nature of the court's jurisdiction.

As of 10 March 2003, 89 countries are members of the treaty. Notable non-members include the People's Republic of China, Russia, and the United States, three of the five permanent members of the UN Security Council.

In April of 2003, Belgian attorney Jan Fermon filed suit to bring US General Tommy Franks to trial in front of the ICC for war crimes committed during the 2003 invasion of Iraq.

Table of contents

How to bring a case to the ICC

Cases will be referred to the ICC by one of four methods:

  1. A country member of the Assembly of States Parties sends the case;
  2. A country that has chosen to accept the ICC's jurisdiction sends the case;
  3. The Security Council sends the case (subject to veto from the permanent five members); or
  4. The three-judge panel authorizes a case initiated by the International Prosecutor.

Even though the Court has jurisdiction over the crime of international aggression, it will not exercise such jurisdiction until the crime has been further defined.

Historical Background

The first international court[?] to try war crimes was the International Military Tribunal (IMT) which held the Nuremberg 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 of UN[?] 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 occurrence 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 Plenipotentiaries 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 favor of the Statute; the United States, Israel, People's Republic of 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 legally came into existence on 1 July 2002. When fully constituted, the ICC will have its headquarters in The Hague, Netherlands; but its Statute permits it to hold its proceedings anywhere.

The court has become operational once the signatory nations have met in the Assembly of State Parties to appoint a prosecutor[?] and 18 judges. The Judge-President is the Canadian Philippe Kirsch[?] and the Vice-Presidents are Akua Kuenyenia and Elizabeth Odio Benito.

Structure and powers

Countries ratifying the treaty that created the ICC grant it authority to try their citizens for war crimes, crimes against humanity and genocide. It provides for ICC jurisdiction over offences committed on the territory of a state (including crimes committed on that territory by a national of a non-state party), 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 non-state party has entered into an agreement with the court providing for it to have such jurisdiction in a particular case.

The International Criminal Court is composed of the Court itself, divided into a number of chambers (Pre-Trial, Trial and Appellate), the Registry, the Office of the Prosecutor and the Assembly of State Parties.

Many states wanted to add "aggression", "terrorism" and drug trafficking to the list of crimes covered by the Rome Statute; however other states opposed this, on the grounds that these crimes were difficult to define, and that dealing with 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 treaty merely brands "aggression" a crime without defining it all, pending adoption of an amendment to the Statute is defining it; it may also be amended to include other crimes. But no amendments can be made until seven years after the Statute's entry into force.

Role of United Nations

The initial impetus for its establishment came from within the United Nations, and although is legally a separate entity, and not a United Nations institution, the UN has a clearly defined role towards the court even though 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 entered 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.

List of States parties

As of 10 March 2003, the following 89 countries have ratified or acceded to the ICC Statute: Afghanistan, Albania, Andorra, Antigua and Barbuda, Argentina, Australia, Austria, Barbados, Belgium, Belize, Benin, Bolivia, Bosnia and Herzegovina, Botswana, Brazil, Bulgaria, Cambodia, Canada, Central African Republic, Colombia, Costa Rica, Croatia, Cyprus, Democratic Republic of Congo, Denmark, Djibouti, Dominica, East Timor, Ecuador, Estonia, Fiji, Finland, France, Gabon, Gambia, Germany, Ghana, Greece, Honduras, Hungary, Iceland, Ireland, Italy, Jordan, Latvia, Lesotho, Liechtenstein, Luxembourg, Republic of Macedonia, Malawi, Mali, Malta, Marshall Islands, Mauritius, Mongolia, Namibia, Nauru, Netherlands, New Zealand, Niger, Nigeria, Norway, Panama, Paraguay, Peru, Poland, Portugal, South Korea, Romania, Saint Vincent and the Grenadines, Samoa, San Marino, Senegal, Serbia and Montenegro, Sierra Leone, Slovakia, Slovenia, South Africa, Spain, Sweden, Switzerland, Tajikistan, Tanzania, Trinidad and Tobago, Uganda, United Kingdom, Uruguay, Venezuela, Zambia.

In addition to the above, there are 52 states which have signed but not accepted the treaty and 2 states which have withdrawn their signatures from the treaty.

Opposition to the ICC

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. Although supporters say that the checks and balances in the ICC make this an unlikely possibility, opponents argue that giving even a temporary member of the Security Council the power to veto any objections of prosecutorial bias gives the ICC no accountability whatsoever.

Supporters would counter that the ICC's definitions are very similar to those of the Nuremberg trials. They also argue that the states which object to the ICC are those which regularly carry out genocide, war crimes and crimes against humanity in order to protect or promote their political or economic interests. It is unsurprising that states which carry out these crimes wish to avoid being prosecuted for them.

US objections

The United States, which signed but did not ratify the statute during the Bill Clinton administration, withdrew its support soon after George W. Bush assumed the presidency. 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 taking part in UN-sponsored peacekeeping missions -- as several other countries were able to do. The US fears that American soldiers and political leaders may be subject to "frivolous or political motivated prosecutions".

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. It is important to note that signing a treaty and ratifying a treaty are not the same thing.

Many in the U.S. believe that, as the world's sole remaining superpower, the United States can move against war criminals more effectively in a unilateral fashion. They cite the following examples to support their case:

U.S. opponents of the ICC maintain that in cases where the U.S. failed to act quickly enough to prevent disaster (e.g. Rwanda), the U.S. has been criticized for allowing genocide to occur; in cases where the U.S. has acted quickly (e.g. Yugoslavia, Somalia) they have been criticized and even accused of war crimes.

Furthermore, opponents contend that the neither the ICC nor the United Nations has any real power to enforce the extradition of war criminals from signatory states. Therefore, any kind of military action to force compliance would have to be undertaken (in large part) by the U.S., action which would expose U.S. officials to spurious charges of war crimes.

Israeli and Chinese objections

Israel objects to the Rome Statute because of its definition of "the war crime of the transfer of parts of the civilian population of an occupying power into occupied territory". Israel fears prosecution of Israeli settlers, or Israeli government officials who support the policy of settlements, as "war crimes". 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.

The PRC 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.

Other Objections to the Statute

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 jurisdiction over US nationals in this case would not interfere with US sovereignty, say ICC proponents. Some have, however, argued that their 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 authorized 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.)

US measures against the ICC

When it became clear in 2002 that the treaty creating the ICC would receive the requisite number of ratifications to enter into force, the United States began to undertake a number of measures to exempt US nationals from the Court's jurisdiction. Several supporters of the Court have described this as an attempt to "strangle it at birth".

The US tries to force other states to sign bilateral agreements with them (see below) by applying sanctions against states that are not signing these agreements. In 2003 the US stopped military aid for 35 countries (among them nine European countries). These sanctions have to be applied by a US law if a state is unwilling to sign the bilateral agreement (there are exceptions for NATO-members and allies such as Israel, Egypten, Australia and Southkorea).

American Servicemembers Protection Act

In 2002, the U.S. Congress passed the American Servicemembers' Protection Act[?] (ASPA), which contained a number of provisions, including prohibitions on the US providing military aid to countries which had ratified the treaty establishing the court; however, there were a number of exceptions to this, including NATO members, "major non-NATO allies" (such as Australia, Israel, the Republic of China on Taiwan and a number of other countries), countries which made into an agreement with the United States not to hand over US nationals to the Court (see "Article 98" agreements below). ASPA also excluded any military aid that the U.S. President certified to be in the U.S. national interest.

In addition, ASPA 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.

United Nations Security Council Resolution 1422

In July 2002, the United States threatened to use its Security Council veto to block renewal of the mandates of several United Nations peacekeeping operations, unless the Security Council agreed to permanently exempt US nationals from the Court's jurisdiction.

Initially, the US had sought to prevent personnel on UN missions being tried by any country except that of their nationality. When the other members of the Security Council rejected that approach, the United States then sought to make use of a provision of the Rome Statute, which permits the Security Council to request the ICC not to exercise its jurisdiction over a certain matter for up to one year at a time. The United States sought the Security Council to convey such a request to the ICC concerning personnel on United Nations peacekeeping and enforcement operations, and to have that request renewed automatically each year. (If it was renewed automatically each year, then another Security Council resolution would be required to cease the request, which the US could then veto--which would effectively make the request permanent.) Court supporters argued that the Rome Statute requires the request to be valid to be voted upon anew each year in the Security Council, and hence that an automatically renewing request would violate the Statute.

Other members of the Security Council opposed this United States request also. However, they were increasingly concerned about the future of peacekeeping operations. The United Kingdom eventually negotiated a compromise, whereby the US would be granted its request, but only for a period of one year, and a new Security Council vote would be required in July each year for the exclusion of peacekeepers from ICC jurisdiction to be continued. All members of the Security Council endorsed this resolution, although many did so reluctantly. The result was Security Council Resolution 1422.

NGO supporters of the Court, along with several countries not on the Security Council (including Canada and New Zealand), protested the legality of the resolution. The resolution was made under Chapter (which?) of the UN Charter, which requires a "threat to international peace or security" for the Security Council to act; ICC supporters have argued that a US threat to veto peacekeeping operations does not constitute a threat to international peace or security.

"Article 98" agreements

Article 98 of the Rome Statute provides that a country need to hand over a foreign national to the Court if it is prohibited from doing so by an agreement with that national's country. The US has attempted to use this measure to exempt its nationals from the Court's jurisdiction, by negotiating agreements with State Parties making use of Article 98.

Amnesty International and the European Commission Legal Service, along with several other groups supporting the ICC, have claimed that these agreements the US is attempting to negotiate are not valid under Article 98. They argue that the language in Article 98 is normally used in international law to refer to Status of Forces Agreements (SOFA), mission agreements and extradition treaties; hence they claim that Article 98 can only be used for these purposes, and not to create a general exclusion of another states nationals from being handed over to the ICC.

Romania and Israel (even though the later is not a party to the Statute) were the first to sign Article 98 agreements with the US. In response to Romania's action, the European Union requested that candidate countries not sign Article 98 agreements with the United States until the EU ministers had met to agree upon a common position. The US State Department called this action "inappropriate". ICC supporters countered that the United States was attempting to use issues of military aid and NATO membership to bully other countries into signing.

Finally, in October 2002, the Council of the European Union adopted a common position, permitting member states to enter into Article 98 agreements with the United States, but only concerning US military personnel, US diplomatic or consular officials, and persons extradited, sent to their territories by the United States with their permission; not the general protection of US nationals that the US sought; furthermore the common position provided that any person protected from ICC prosecution by such agreements would have to be prosecuted by the United States.

On December 26, 2002, India became the 15th country to sign a bilateral agreement with the US under Article 98. The agreement aims to prevent the "extradition of nationals of either country to any international tribunal without the other country's express consent". Alltogether around 50 states have up to now (July 3, 2003) signed a bilateral agreement with the US, at least seven of them signed the agreement secretly.

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