International Tribunal Spotlight
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The International Criminal Court
By:Taylor G. Stout, Reporter, International Judicial Monitor
Origins
The International Criminal Court represents the culmination of the efforts of many nations, international legal scholars, and international institutions lasting nearly a century. In 1919, the horrors of World War I led the Allied Powers to debate establishing the first international criminal tribunal, a court to try high-ranking German officials for war crimes. The Treaty of Versailles provided for the trial of Kaiser Wilhelm II and German officers who had violated the accepted rules of war embodied in the Hague Conventions of 1899 and 1907. But a lack of political unity among the Allies prevented the prosecutions from ever taking place.
The atrocities committed during World War II strengthened the Allies’ conviction of the need for an international criminal court and led them to create ad hoc criminal tribunals to try war criminals. The most famous of these courts was the International Military Tribunal at Nuremberg, which tried Nazi leaders for waging aggressive war, war crimes, crimes against humanity, and crimes against peace. The success of the IMT led to additional prosecutions of lower-level Nazi officials at Nuremberg and to the establishment of the International Military Tribunal for the Far East to try Japanese war criminals. Ultimately, the World War II tribunals were disbanded after they were deemed to have achieved their purpose of trying those responsible for wartime atrocities.
Following the World War II tribunals and the founding of the United Nations shortly thereafter, there was a movement to establish a permanent international criminal court similar to the war tribunals. The Cold War between the United States and the Soviet Union, however, stalled this initiative. Despite this setback, the United Nations continued the tradition of creating ad hoc war crimes tribunals to pursue justice in discrete instances. Toward the end of the twentieth century, atrocities in Eastern Europe and Africa prompted the UN to establish the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda. Concerns about the limitations of these ad hoc courts led to a renewed movement for a permanent international criminal court.
The Rome Statute
In 1998, the United Nations General Assembly sponsored a conference in Rome with the purpose of adopting a convention establishing an international criminal court. On July 17, 1998, over 100 countries adopted the Rome Statute, a multilateral international treaty establishing the International Criminal Court. Article 126 of the statute provided that it would enter into force after 60 nations had ratified it. The United States was one of seven nations to vote against the final version of the Rome Statute. The other dissenters included China, Iraq, Iran, Israel, Libya, and Sudan.
Following post-Rome negotiations regarding crime definitions and rules of evidence and procedure, the United States signed the Rome Statute on December 31, 2000. But the United States still has not ratified the treaty. By 2002, over 60 nations had ratified the Rome Statute, and it entered into force on July 1, 2002. Currently, 113 nations have ratified the Rome Statute. The ICC has exercised jurisdiction in situations involving five nations: Uganda, the Democratic Republic of the Congo, the Central African Republic, Sudan, and Kenya. The first trial at the ICC began in January 2009 against a Congolese warlord accused of deploying children in armed conflict. The ICC’s second trial against other Congolese warlords is currently taking place, and a third trial is under way against former Congolese vice-president Jean-Pierre Bemba Gombo for gender crimes committed in the Central African Republic.
Although inspired by ad hoc international criminal tribunals such as the IMT, the ICTY, and the ICTR, the ICC is different from its predecessors in several respects. The Court is a permanent judicial body with potentially universal reach. Furthermore, the ICC is a complementary court. It may not exercise concurrent jurisdiction with the domestic courts of involved nations. And unlike the ICTY and the ICTR, the ICC is not a subsidiary organ of the United Nations Security Council, and it may act independently. Finally, and perhaps most significantly, victims and their families may directly submit claims to the Court for wrongs committed, which was not the case with the ad hoc tribunals.
Structure of the ICC
The ICC is comprised of 18 judges serving in three judicial divisions: the Pre-Trial Division, the Trial Division, and the Appeals Division. Judges are elected by the Assembly of States Parties to nine-year terms. All judges must be citizens of states parties to the Rome Statute, and all must be from different nations. Thus, the United States cannot provide a judge for the ICC. The current judges of the ICC are Sang-Hyun Song (Republic of Korea), Fatoumata Dembele Diarra (Mali), Hans-Peter Kaul (Germany), Elizabeth Odio Benito (Costa Rica), Akua Kuenyehia (Ghana), Erkki Kourula (Finland), Anita Usacka (Latvia), Sir Adrian Fulford (United Kingdom), Sylvia Steiner (Brazil), Ekaterina Trendafilova (Bulgaria), Daniel David Ntanda Nsereko (Uganda), Bruno Cotte (France), Joyce Aluoch (Kenya), Sanji Mmasenono Monageng (Botswana), Christine Van den Wyngaert (Belgium), Cuno Jakob Tarfusser (Italy), Silvia Alejandro Fernandez de Gurmendi (Argentina), Kuniko Ozaki (Japan), and Rene Blattmann (Bolivia).
The Presidency of the ICC is responsible for the overall administration of the court. The judges of the ICC elect the president and two vice-presidents from among their number to serve in this capacity. The current president is Sang-Hyun Song of the Republic of Korea.
The Office of the Prosecutor conducts investigations and prosecutions. Pursuant to the Rome Statute, the prosecutor acts independently from all governments and international organizations. The head prosecutor is Luis Moreno-Ocampo of Argentina. He was elected for a nine-year term and is assisted by two assistant prosecutors.
The Assembly of States Parties oversees the ICC. The Assembly consists of one representative from each nation that is a party to the Rome Statute. The Assembly elects judges and prosecutors, approves the ICC’s budget, adopts rules of procedure and evidence, and manages all the divisions of the court. Members of the Assembly may not interfere with the judicial functions of the court.
Jurisdiction of the ICC
The Rome Statute empowers the ICC to prosecute four crimes: genocide, crimes against humanity, war crimes, and the crime of aggression. The crime of aggression, however, has not yet been defined, so the ICC does not yet exercise jurisdiction over this offense. A case must be referred to the Court in one of three ways: a state party may refer a situation to the Prosecutor; the United Nations Security Council may refer a situation to the Prosecutor; or the Prosecutor may initiate an investigation under his or her own authority.
Even if a case implicating one of the enumerated crimes is referred to the ICC through one of the proper channels, the ICC does not have universal jurisdiction. The Court’s jurisdiction is limited to the following situations: the accused is a national of a state that is a party to the Rome Statute; the alleged crime took place within the territory of a state party; the state in question has otherwise accepted the jurisdiction of the ICC over a crime that either took place within its territory or was committed by one of its nationals; or the United Nations Security Council referred the situation to the Prosecutor, regardless of the nationality of the accused or the location of the alleged crime. In addition, the Court may only exercise jurisdiction over crimes committed after July 1, 2002.
Finally, the jurisdiction of the ICC is limited by the principle of complementarity. The ICC acts in a complementary role to national courts. The ICC may only exercise its jurisdiction over a case if a national court is genuinely unable or unwilling to do so. Thus, national courts have first priority in prosecuting cases involving the international crimes of genocide, crimes against humanity, and war crimes. The ICC acts as a safety net, exercising jurisdiction only when a just trial is impossible at the national level.
United States Position on the ICC
Although the United States has long been a leader in supporting the prosecution of atrocities, it is unlikely to become a member of the International Criminal Court in the near future. Following the end of World War II, the United States led Allied efforts to prosecute German and Japanese war criminals. And the United States supported the creation of the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the special tribunals for Sierra Leone, Cambodia, and Lebanon. But despite its prominent role in the prosecution of international crimes, the United States has been reluctant to ratify the Rome Statute and join the ICC.
The United States was a central participant at the Rome Conference, which developed the Rome Statute establishing the ICC. The Clinton administration signed the Rome Statute on December 31, 2000. But President Clinton had reservations about the Rome Statute and did not submit the treaty to the Senate for ratification. President Clinton advised his successor, President George W. Bush, not to ratify the treaty until these concerns were satisfied. After taking office, President Bush directed Under Secretary of State John Bolton to send a letter to the United Nations informing the organization that the United States did not intend to ratify the Rome Statute and become a party to the ICC.
Under the Bush administration, Congress passed the American Service-Members’ Protection Act (ASPA) (known in Europe as the “Hague Invasion Act”) in order to protect American military personnel stationed abroad from the jurisdiction of the ICC. The ASPA restricted aid to states parties to the Rome Statute that did not agree to bilateral non-surrender agreements with the United States. These agreements are known as “Article 98 agreements.” The United States also negotiated over 100 bilateral agreements prohibiting the transfer of U.S. citizens to the ICC.
American policy toward the ICC softened during the later years of the Bush administration, and the United States now actively pursues a policy of positive engagement with the ICC. Although not a party to the Rome Statute, the United States has proven willing to work with the ICC where it shares the interests of the United States. In particular, the United States has supported the ICC’s efforts to respond to atrocities in Sudan and Sierra Leone. In those cases, the U.S. did not veto the Security Council’s referral to the ICC the question of whether war crimes were committed. But America’s original concerns about the Rome Statute and the ICC continue to prevent the United States from joining the ICC, limiting its role to mere cooperation with the court.
The United States government has two primary reservations about the Rome Statute. First, the statute grants the ICC jurisdiction over crimes committed by nationals of states that are not parties to the Rome Statute if the crime occurred within the territory of a state party. The Clinton administration worried that this provision exposes U.S. military personnel to prosecution. Second, the Rome Statute empowers the ICC Prosecutor to initiate prosecutions without the prior approval of the Security Council.
Both an independent task force of the American Society of International Law and the Council on Foreign Relations share these concerns and have recommend that the United States refrain from ratifying the Rome Statute until they are addressed. In addition, the ASIL task force objects to the ICC’s lack of procedural protections for defendants that are present in the American criminal judicial system. The missing safeguards include jury trials and the concept of double jeopardy. The ASIL task force and the CFR have recommend that the United States engage with the ICC but delay reconsideration of joining the ICC until the United States has observed how stringently the ICC adheres to its jurisdictional limitations.
The American Bar Association has adopted the opposite view and argues that the United States should ratify the Rome Statute. The ABA emphasizes the complementary jurisdiction of the ICC, arguing that the United States will always prosecute guilty individuals, so that the ICC will never be able to exercise jurisdiction over American nationals or military personnel. The ABA also points out that, by not joining the ICC, the United States is missing the opportunity to influence the development of the ICC’s procedural and evidentiary rules. And the ABA highlights the inclusion of many core American procedural defenses in the rules of the ICC.
Both the Clinton and Bush administrations rejected the ABA view and discouraged ratification of the Rome Statute. And although the United States supports the mission of the ICC, the anti-ratification position has persisted under the Obama administration, signaling that the United States is unlikely to join the ICC in the near future. Despite the lack of U.S. membership, however, the ICC is already conducting important trials and should prove an enduring force for international justice.
Sources:
Report of an Independent Task Force, The American Society of International Law, U.S. Policy Toward the International Criminal Court: Furthering Positive Engagement, March 2009.
The American Bar Association, Section of International Law and Practice, Section of Criminal Justice, Section of Individual Rights and Responsibilities, Association of the Bar of the City of New York, Recommendation, February 2001.
Vijay Padmanabhan, From Rome to Kampala: The U.S. Approach to the 2010
International Criminal Court Review Conference, Council Special Report No. 55, Council on Foreign Relations, April 2010.
http://www.icc-cpi.int/Menus/ICC?lan=en-GB
http://www.pict-pcti.org/courts/ICC.html
http://www.un.org/News/facts/iccfact.htm
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