After the devastation of World War II, the Allies put Nazi leaders responsible on trial to demonstrate that ‘never again’ would such blatant destruction of human life and dignity be permitted. Unfortunately, in the succeeding fifty years, the world sustained atrocity after atrocity without having recourse to any permanent, global mechanism for the prevention and punishment of such crimes. However, with the creation of the International Criminal Court (ICC), the world has begun to fulfill the post-WWII commitment.
The ICC came closer to reality on 1 July 2002 when the Rome Statute came into force, heralding a global commitment to hold dictators and other perpetrators of gross violations accountable for their crimes. The ICC is a permanent court to investigate and bring to justice individuals who commit the most serious crimes of international concern. Initially, the Court will have jurisdiction over genocide, war crimes and crimes against humanity. The crime of aggression will be added once a definition has been agreed and added to the Rome Statute by amendment. The ICC is meant to complement national legal structures, and will act only when the national systems are either unwilling or genuinely unable to proceed.
The treaty to establish the ICC was adopted in Rome on July 17, 1998 by the affirmative vote of 120 countries at the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, or the “Rome Conference.” Inspired by the Nuremberg trials, and the International Criminal Tribunals for Rwanda and the Former Yugoslavia, 160 countries negotiated the treaty that designed the world’s first permanent International Criminal Court to prevent perpetrators of the most heinous crimes from eluding justice.
As of September 2003, 92 countries are party to the Rome Statute. Click here to see list of signatory states and states parties. State Parties encompass countries from all regions of the globe, including major US allies: all NATO members (except Turkey); all member-states of the European Union; and two Permanent Members of the UN Security Council (France and the United Kingdom). The United States played a key role in negotiating the original treaty – particularly in ensuring due process and rights of the accused – but in the end voted against the creation of the Court, citing concerns that American service members could be subject to investigation or prosecution.
Cases will come before the International Criminal Court in one of three ways: the United Nations Security Council may refer a “situation” using its powers under Chapter VII of the UN Charter regardless of where or by whom the crime or crimes in question were committed; a situation may be referred to the Prosecutor by a country that has ratified the Rome Statute; or the Prosecutor may initiate an investigation on his or her own (but may only pursue it with the approval of the Pre-Trial Chamber). Except in the case of a Security Council referral, the ICC will only be able to exercise jurisdiction over crimes committed by nationals or on the territory of countries that have ratified the ICC.
One of the most significant innovations will be the role of victims in the ICC. Victims will be able to participate in the proceedings through legal representatives, and to seek reparation. In addition, a Trust Fund for victims is to be established.
The Assembly of States Parties (ASP) is the governing body of the International Criminal Court, and consists of all those countries that have ratified the Rome Statute. They held 4 meetings in New York between 2002 and 2003. The ASP will hold future session in The Hague. On 3-7 February 2003, the Court’s 18 judges were elected by the Assembly of States Parties. On April 21, 2003, Luis Moreno Ocampo of Argentina was unanimously elected Prosecutor of the International Criminal Court (click to Human Rights First’s Statement on Moreno Ocampo’s election). He took his oath of allegiance on June 16, 2003. Bruno Cathala was unanimously elected by the ICC’s 18 judges to be the ICC Registrar. Court personnel reflect the geographical and legal diversity of the member countries.
After the Rome Conference in 1998, the UN’s General Assembly held Preparatory Commission (PrepCom) sessions to determine the mechanics of the Court. On September 10, 2002, the ASP adopted documents including the Rules of Procedure and Evidence and the Elements of Crimes, the Relationship Agreement between the UN and the Court, the Financial Regulations of the Court, and the Agreement on Privileges and Immunities. Click here to see key documents
The ICC is now operational and has announced its intention to investigate crimes committed after July 1, 2002 in Uganda and the Democratic Republic of Congo. States may still join the Court by depositing their instrument of ratification or accession with the UN.