International Criminal Court

I

Introduction

International Criminal Court (ICC), independent judicial institution with the power to try and punish individuals for the most serious crimes of international concern: genocide, crimes against humanity, crimes of aggression, and war crimes. The court was first approved in 1998 by a treaty known as the Rome Statute, and it officially came into being on July 1, 2002, after 60 countries ratified the treaty. The court has its headquarters in The Hague, The Netherlands.

Unlike previous war crimes courts with jurisdiction limited to specific conflicts, the ICC is a permanent institution whose jurisdiction extends globally. Even individuals from countries that are not parties to the Rome Statute may be subject to the court’s jurisdiction under certain circumstances. However, the ICC is complementary to national criminal procedures, meaning that it may not exercise jurisdiction if a nation is adequately prosecuting accused criminals.

The ICC differs from the United Nations International Court of Justice in important respects. First, the ICC is not an organ of the United Nations (UN), although it maintains a relationship with the UN. Second, the ICC handles cases involving individual criminal responsibility, whereas the International Court of Justice mainly decides legal disputes between nations.

II

Creation of the Court

A

Historical Background

Laws and customs governing wartime conduct have existed since ancient times, but historically, few people have been prosecuted or punished for war crimes, genocide, or crimes against humanity. The first true international criminal court dates from 1474, when Peter von Hagenbach, a military officer appointed by Duke Charles the Bold of Burgundy, was tried and condemned to death before 27 judges of the Holy Roman Empire for atrocities against civilians committed by his troops.

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In general, each nation has prosecuted and punished its own citizens for international crimes. National prosecution has proven difficult, however, when the perpetrators are political leaders or other high-ranking state officials, or if the crimes are numerous and involve many perpetrators. Criticism of German deficiencies in prosecuting and punishing the war crimes committed during World War I (1914-1918) contributed to the decision of the Allies in World War II (1939-1945) to establish the Nürnberg (Nuremberg) and Tokyo tribunals to try major German and Japanese war criminals.

Sustained movement for an international criminal court began in the early 20th century and grew with each ensuing armed conflict. The possibility of a court was studied after World War I, but opposition from isolationists prevented further action. Following World War II, the experiences of the Nürnberg and Tokyo trials led UN member states to again propose a permanent international criminal court, in order to ensure accountability for international crimes, to deter their commission, and to lessen the image of war crimes trials as “victors’ justice.”

In 1948 the UN General Assembly asked its International Law Commission to study the idea of an international judicial body to try individuals charged with genocide. In 1950, after the commission concluded that such a body was both desirable and possible, the General Assembly established its own committee to draft a statute for an international criminal court. The committee finished its work a year later, revising the text in 1953. For political and legal reasons, the draft was tabled and the issue lay dormant until 1989, when Trinidad and Tobago, during a special session of the General Assembly, proposed the creation of an international criminal court to help fight drug trafficking. In response, the General Assembly once again asked the International Law Commission to work toward the establishment of such a court. While this work was underway, the United Nations Security Council responded to atrocities in the former Yugoslavia and in Rwanda by creating special war crimes tribunals for each country in 1993 and 1994, respectively. See War Crimes Trials.

B

The Rome Conference

The nearly century-long effort to establish a permanent court culminated with a 1998 UN diplomatic conference in Rome, Italy, convened for the sole purpose of finalizing a statute on the establishment of an international criminal court. The global event attracted representatives of 160 countries, 17 intergovernmental organizations, 14 specialized agencies of the UN, and some 250 nongovernmental organizations.

The Rome Statute was adopted by a vote of 120 in favor, 7 against, and 21 abstaining. The names of the countries voting were not recorded, but three countries—the United States, Israel, and China—openly stated their reasons for voting against the statute. The United States objected to the court’s independent power to initiate prosecutions and sought a greater role for the UN Security Council. For example, U.S. negotiators, fearful that American soldiers and peacekeepers abroad could be brought before the court on politically motivated charges, had tried to reshape the statute to give the Security Council exclusive power to initiate prosecutions. This would have allowed the United States, as a permanent member of the Security Council, to veto any prosecutions it opposed. However, this proposal was defeated by a majority concerned about placing prosecutorial decisions in the hands of a political body. The United States, along with China, also objected to the court’s power, in certain circumstances, to arrest and try citizens of countries that have not signed the statute, arguing that prosecutions should require the consent of the accused person’s government. Israel objected to the statute’s list of war crimes because it included the act of moving populations into occupied territories. Some abstaining states objected to the failure to include terrorism or the use of nuclear weapons as crimes, and others opposed the decision to eliminate the death penalty in sentencing.

Although the United States voted against the treaty, U.S. officials expressed satisfaction with much of the statute. President Bill Clinton ultimately signed it, although he did not submit it to the United States Senate for approval. In May 2002 President George W. Bush, citing the same objections raised by U.S. officials during the Rome conference, informed the UN that the United States would not ratify the agreement, terminating the effect of Clinton’s signature.

The nonparticipation of the United States and other major powers could weaken the court by raising questions about its legitimacy. Nonparticipation could also limit the court’s financial resources because funding is provided only by countries that are parties to the Rome Statute. However, if most major powers ratify the Rome Statute, the effect of nonparticipation on the ICC may be minimal. In fact, the interests of the United States and other ICC opponents could be hurt by their nonparticipation, because their governments will be unable to participate in the election of judges, selection of prosecutors, and development of the rules of evidence and procedure, all of which will have a major impact on future development of the court and its effectiveness.

III

Jurisdiction

The Rome Statute gives the court jurisdiction over the most serious crimes of international concern if they are committed after July 1, 2002, either (1) by a citizen of a nation that accepts the statute, or (2) by a person of any nationality on the territory of a nation that accepts the statute. The latter type of jurisdiction means that citizens of nations that have not accepted the treaty may be arrested and tried for international crimes if their actions take place in the territory of a nation that adheres to the statute. Nations that are not parties to the statute may voluntarily accept the court’s jurisdiction on a case-by-case basis. Furthermore, the UN Security Council can grant the court jurisdiction for a specific situation even when the nation in which the crime occurred is not a party to the statute. In any criminal case, the ICC may only exercise its jurisdiction when a national court is unwilling or unable to carry out the investigation or prosecution. For example, the ICC might intervene when a government’s judicial system has collapsed or is actively shielding a person from criminal responsibility.

The court may hold accountable any person aged 18 or older at the time of the crime without regard to the individual’s official duties or functions. Therefore, heads of state, legislators, and other high-ranking government officials are not exempt from criminal responsibility. Crimes in the court’s jurisdiction are not subject to a statute of limitations, meaning there is no time limit on bringing charges.

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