"An International Criminal Court ("the Court") is hereby established. It shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute, and shall be complementary to national criminal jurisdictions. The jurisdiction and functioning of the Court shall be governed by the provisions of this Statute."

Article 1 of the Rome Statute of the International Criminal Court

After World War I, the international community has been attempting to establish a permanent international criminal court for the gravest breaches of international humanitarian law. Between 1919 and 1994, there have been five ad hoc international investigation commissions, four ad hoc international criminal tribunals, and three internationally mandated or authorised national prosecutions after World War I and II.¹ In two international conventions — the 1948 Genocide Convention and the 1973 Apartheid Convention — reference was made to an international criminal jurisdiction, but there was not enough political will for the establishment of a permanent court.

After attempts in the 1950s were frozen by the Cold War, the idea of a permanent court gained new momentum with the establishment by the United Nations Security Council of the International Criminal Tribunals for the former Yugoslavia (ICTY) in 1993, and for Rwanda (ICTR) in 1994. And thus, after intensive work, the Rome Statute of the International Criminal Court was adopted and opened for signature by a diplomatic conference in Rome on 17 July 1998. This article gives a short overview of the main issues of the negotiations and of the Rome Statute itself.²

The International Law Commission (ILC) prepared a draft proposal in 1993 and, taking into account comments from governments, a final draft was submitted the following year. The 1994 ILC draft constituted the basic document for the further preparatory work instituted by the General Assembly, first in an Ad Hoc Committee in 1995 and thereafter in six meetings of the Preparatory Committee between 1996 and 1998.³

A so-called like-minded group of states was formed in support of establishing an effective court and the group was — psychologically, in particular — a significant driving force in the process. With the exception of Asia, the sixty-odd group was geographically representative.

In the preparatory process, many issues to be discussed further, were identified and numerous proposals submitted. The mandate of the Preparatory Committee was to produce a widely accepted consolidated text of a draft statute. This proved to be a long and cumbersome process. Although the Committee reported to the General Assembly in 1997 that it considered it realistic to convene a diplomatic conference in 1998, and such a decision was also taken, most of the difficult political issues, as well as a vast number of legal-technical questions were still outstanding. The Preparatory Committee’s draft Statute to the Rome Conference consisted of 173 pages containing 116 articles, but also many options and some 1 300 words in brackets indicating that consensus was not reached.⁴ A momentous task awaited the delegates from 160 states participating in Rome,⁵ arriving with diverging expectations.

Initially, and for a long time, the United States was the foremost promoter among the permanent members of the Security Council for the establishment of the Court. The other permanent members were either hesitant or more or less openly hostile towards the project. A major break-through came in December 1998 when Britain expressed its support for the Court. The move put France, where different parts of the administration obviously regarded the project differently, in a difficult position. This was particularly the case since the other member states of the European Union were all for the Court.

The administration in the US was also divided, with the Defence Department and the Pentagon most sceptical, notably about the jurisdiction that would allow the Court to try US citizens without the state’s consent. The demands of the US turned out to be unacceptable to the so-called like-minded states and others, and it finally found itself to be one of the only seven states voting against the Statute in a non-recorded vote in Rome on 17 July 1998. The only other permanent member of the Security Council voting against the Statute was China.

The huge task was successfully completed and an overwhelming majority of 120 states voted in favour of the Statute, with 21 states abstaining. It should be stressed that the Statute is a multiquestion compromise, a package deal, carefully drafted and served for debate step-by-step with reduced options each time. Of course, many informal contacts took place between the drafts and the final package was only delivered to the conference in the early morning of 17 July, the last day of the conference. It was a ‘take it or leave it’ deal that could not be reopened on any issue without falling apart.⁶ The Statute consists of 128 articles, divided into thirteen parts.

For the follow-up work, a Preparatory Commission is now producing draft texts on rules of procedure and evidence, so-called elements of crimes, agreements with the host state and the UN, financial regulations and the first budget for the Court. This work is to be completed before 1 July 2000.

A specific feature of the negotiating process was the significant participation and involvement of non-governmental organisations (NGOs). On 25 February 1995, a small group of NGOs following the process, formed the NGO Coalition for an International Criminal Court (CICC).⁷ The group, advocating the establishment of an effective and just Court, was steadily growing and, at the opening of the Rome Conference, involved more than 800 organisations. NGOs were allowed to participate in all formal meetings during the preparatory negotiations and the Rome Conference and they became a natural part of the process. Larger human rights organisations presented extensive reports with recommendations to the delegations and other organisations. Special interest groups were lobbying for certain issues, such as gender-related matters. The impact of NGOs and the Coalition on promoting the process, assisting delegations and informing the press and global civil society can hardly be overstated.

According to the Statute, the seat of the Court shall be The Hague, which was the only real contender for hosting the Court. Realising the potential practical and economic difficulties in dealing with cases from all over the world, the drafters provided that the Court may decide that a trial should take place elsewhere than in The Hague.⁸

In its draft, the ILC envisaged a scaled-down Court where the majority of the judges would only be called for duty when the work so required. This proposal was not accepted and instead the Statute provides for a full-time Court, consisting of eighteen judges — appointed to an Appeals Division, a Trial Division and a Pre-Trial Division and divided into chambers.⁹ A mechanism is built in, however, to allow part-time serving judges in times of low workload. The other two major organs of the Court are the Office of the Prosecutor and the Registry.¹⁰

An Assembly of States Parties, with one representative per state party, is established to be the electing and legislative body for the Court.¹¹ Its only function with respect to specific cases before the Court is to deal with certain instances of states’ refusal to co-operate.

Unlike the ICTY and ICTR, the Court is not a UN body. In the early stages of the negotiations, it was proposed by some that the Court should be incorporated into the UN system. This was refuted, since most states wanted to avoid opening the UN Charter for renegotiation through this project. Instead, the Court is established through a multilateral treaty and the Statute simply states that the Court shall "... be brought into relationship with the United Nations through an agreement" (Article 2).¹²

The Court’s subject matter jurisdiction only applies to crimes specified in the Statute. Genocide, crimes against humanity and war crimes — the same types of crimes that are covered by the subject matter jurisdiction of the ICTY and ICTR — are all defined in relative detail.

Reaching agreement on the list of crimes entailed much controversy. Several countries — including Arab states, China and Mexico — were very reluctant to include acts performed during civil wars or in internal conflicts. Nevertheless, war crimes committed in a non-international armed conflict are covered by the Court’s subject matter jurisdiction. The main argument for this was that many of the worst atrocities today occur in civil wars. Besides, genocide and crimes against humanity, according to the Statute, do not require that they are committed during war. The listing of war crimes also provided a number of ‘non-aligned’ states with the opportunity to try and slip a general ban on the use of nuclear weapons in through the back door. This attempt failed, however, but the result was that there are also no explicit provisions in the Statute banning the use of biological or chemical weapons, or even landmines.¹³

Both in respect of crimes against humanity and war crimes, gender-related crimes and crimes of sexual violence have been acknowledged explicitly, due largely to powerful lobbying by certain interest groups.¹⁴ Another novelty is defining attacks on humanitarian assistance or peacekeeping missions as war crimes. The ‘crime of apartheid’ is specifically listed as a crime against humanity.

In drafting definitions of crimes, there had to be a balance between predictability in respect of the crimes and room for development of international humanitarian law. It is explicitly made clear, therefore, that the definitions of each crime are only "... for the purpose of this Statute" and, further, that these shall not be "... interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute" (Article 10). As a concession to the US, more detailed so-called ‘elements of crimes’ will be developed to assist the Court in the interpretation and application of the different crimes (Article 9).

Another point of dispute was the inclusion of ‘acts of aggression’ as crimes under the Statute, which was strongly promoted, in particular by Germany, Greece and numerous non-aligned countries. Other states were reluctant, pointing to the difficulties to find a definition for individual responsibility (and not state responsibility) and to deal with the distinct powers assigned to the Security Council in the UN Charter. The compromise solution was an explicit intention to include ‘acts of aggression’ as a crime in the Statute. This, however, is conditioned by the prerequisites that the crime will only be included if an acceptable definition can be achieved at a future Review Conference and, if so, will only be applicable to states accepting the amendment to the Statute.¹⁵

For a long time during the process, a number of states advocated the inclusion of other treaty crimes such as drug-trading, terrorism and arms-trading in the catalogue of offences. Over time, however, consensus developed only to include the so-called ‘core crimes’.

A whole chapter of the Statute deals with general principles of criminal law, such as command responsibility, irrelevance of official capacity or immunity and grounds for excluding criminal responsibility. The crimes are not subject to any statute of limitations.¹⁶

The Statute does not put the states parties under a legal obligation to integrate these crimes into their national legislation. Nevertheless, it may be argued that a moral obligation exists to make these crimes prosecutable on a national level — although not necessarily in all details — and, in addition, it would be in the states’ own interest to make this possible in order to "... stand the complementarity test."

One of the central issues that had to be resolved, was the jurisdiction of the Court. A spectrum of proposals — ranging from state consent in an individual case to universal jurisdiction — were submitted. A too limited jurisdiction would render the Court useless, while a too broad jurisdiction, some felt, would infringe extensively on the sovereignty of states.

The solution chosen was that a state automatically accepts the Court’s jurisdiction of the crimes described through accession to the Statute. Thus, the idea — promoted by the US, France, Russia and others — to have an ‘opt-in’ system in respect of certain crimes was dismissed in principle. One major concession, however, was the time-limited (seven years) ‘opt-out’ option for war crimes, which was included in the final package (see further below).¹⁷

The requirement for the Court’s jurisdiction is that either the state on whose territory the crime was committed or the state of which the accused is a national, is a party to the Statute. This was a compromise between proposals aiming at, in essence, universal jurisdiction (South Korea),¹⁸ and proposals that the territorial state must always be a party (United Kingdom), or that both the finally included states must be parties or give their consent in a given case (US). In addition, the jurisdictional regime is the same for all types of crimes, but it only applies in cases not triggered by a referral by the Security Council. It seems that this was a ‘true compromise’, since all sides are equally unhappy — human rights groups and others are disappointed by the limitation of the jurisdiction, while the US has pointed to the Court’s jurisdiction as a major cause for concern. The regime thus created would mean that, for example, a soldier from a non-state party could be brought before the Court for a crime committed on the territory of a state party. On the other hand, the limitations would also result in the Court not having jurisdiction over a perpetrator of serious crimes committed in a non-state party where he or she is also a national, even if captured by a state party (for example, the Pinochet case¹⁹).

The Court only has jurisdiction over crimes committed after the Statute has entered into force. Thus, its jurisdiction cannot be exercised retroactively, something that was in strong demand by a number of states, which have recently experienced transformation to democracy. This means that atrocities taking place at present cannot be addressed by the Court and, more technically, that cases might occur where only ‘half a conflict’ falls under the Court’s jurisdiction. In the latter case, the Court’s ability to act even-handed in respect of different parties in a conflict could be hampered. This may be the case both when the Court comes into being and when a state later becomes a party to the Statute.

Another exclusion from jurisdiction regards persons under the age of eighteen. Despite concerns about child soldiers, this solution was chosen as there was little hope to reach consensus on the age for criminal responsibility. This provision, which should be read together with the provisions on war crimes banning conscripting or enlisting children under the age of fifteen, also has the benefit of avoiding cases where young people have to stand trial on serious charges and serve long-term sentences far from home.²⁰ This is particularly important, since the Court does not have the proper tools to punish young offenders appropriately.

In respect of war crimes, the Statute provides a threshold for jurisdiction, namely that the Court "... shall have jurisdiction ... in particular when committed as a part of a plan or policy or as part of a large-scale commission of such crimes" (Article 8, paragraph 1). From a legal point of view, the reference to jurisdiction makes little sense — the Court either has or does not have jurisdiction — unless it is read as the exercise of jurisdiction. Such an interpretation would be fully in line with the intention that the Court should primarily employ its scarce resources on the most serious crimes and the main perpetrators.²¹

The Statute leaves the possibility open that peacekeepers will be prosecuted by the Court. Hence, the peacekeeper’s state of nationality will not have the exclusive jurisdiction, which deviates from the normal provisions in agreements between troop-contributing countries and the UN. This was one of the US’ principal arguments against the Court. This fear, however, seems unnecessary in light of the principle of primacy for the exercise of national jurisdiction.

The first building block of the package deal was already in place during the preparatory process — the Court’s relationship to the exercise of national jurisdiction. The Statute clearly points out that the Court is not meant to take over the responsibility of states to take judicial action against the crimes in question. Instead, it underlines that states are under an obligation to react to such crimes. The Court should only step in when the national system is "... unwilling or unable genuinely to carry out the investigation or prosecution" (Article 17). In other words, the Court shall complement national systems.

The Court is mainly established to combat impunity, not to take over the functions of systems that work. Even if the principle of ‘complementarity’ means a lesser infringement on state sovereignty, it may nevertheless include some form of evaluation of how the national system functions in a particular case. For this purpose, the Statute identifies some factors to take into account when determining ‘unwillingness’ and ‘inability’. The Prosecutor shall notify all states parties, as well as non-state parties of an initiated investigation, and the Statute provides for procedures to challenge the admissibility of a case (or the jurisdiction of the Court).²²

In this respect, the Court differs from the ICTY and the ICTR, which are given primacy over national jurisdiction. Instead, concurrent jurisdiction is established which, ultimately, has to be resolved by the Court in every given case. This, however, was a price to pay for the Court to be widely accepted.²³ Nevertheless, the Statute is silent on whether the principle of complementarity shall also apply in case of a Security Council referral or if the Court could be afforded primacy in such a case.²⁴

The jurisdiction of the Court can be ‘triggered’ in three different ways.²⁵ Firstly, the Security Council may use its competence to employ coercive means under Chapter VII of the UN Charter, by referring a particular situation to the Court. This requires a situation where there is a threat to or a breach of international peace and security, and where the commission of war crimes, for example, may go unpunished. It does not matter in this case whether the state in question is a state party to the Statute. The Court will function like the present ad hoc tribunals to a large extent. Thus, the expensive and time-consuming process of setting up a new institution can be avoided, but a decision to refer a case can be hindered by the exercise of the veto.

Secondly, a state party may also refer a situation to the Court, in which case the requirements for jurisdiction must be fulfilled. With regard to the experiences of other international bodies where a state may lodge a complaint against another state, it can be assumed that the political price would often be considered too high for this ‘trigger mechanism’ to be applied.

Thirdly, and more controversially, the Statute provides that the Prosecutor may open an investigation proprio motu, or on his or her own initiative. The like-minded states and most of the NGOs held this as one of the most important components for making the Court effective, while other states expressed strong concerns about creating "the most important person in the world." Most of the opposition, in particular by France, was overcome by requiring the Court’s authorisation before the Prosecutor could proceed with the investigation after the initial steps. The threshold is that, based on the information received or gathered by the Prosecutor, there must be "... a reasonable basis to proceed" (Article 15). In such a case, the normal jurisdictional requirements must also be met. A fair assumption is that this trigger mechanism will be the most feasible option in practice. The Prosecutor’s powers, however, will have to be exercised with the utmost care so that the integrity and independence of the Court are preserved and, at the same time, frivolous prosecutions and trials are prevented.

One of the most sensitive political issues was the Court’s (eventual) relationship with the Security Council. While many states acknowledged that there is a link between the Council’s seeking of political solutions to ongoing conflicts and the Court’s exercise of criminal jurisdiction, others contested that the link should be formalised in the Statute. According to the latter view, the Security Council and the Court should be totally independent of each other. In the most extreme view, the Security Council should not even be allowed to trigger the Court’s jurisdiction by referring situations. Many good arguments can be made both for and against each option, but the line reflecting an idea of realpolitik rather than of judicial independence prevailed. In other words, the peace process was given priority over prosecution of crimes. Interestingly, the debate did not always follow the lines normally drawn in the UN on the issue of the role of the Security Council. Instead, the wish to finally establish the Court and, thus, to find a widely acceptable compromise was given preference.

The Statute provides that the Security Council may suspend an investigation or a prosecution within twelve months, by adopting a resolution under Chapter VII of the UN Charter. Such a decision may also be renewed, but would always require that the Council is dealing with the same ‘situation’ (an example could be a ‘Dayton peace process’). Thus, a political body is entitled to interfere in a judicial process, a situation that is certainly unknown in the national systems of democratic states. The compromise solution, however, means that a vote on suspension is also subject to the veto; the veto of a single permanent member of the Council can block the imposition of such a waiting period. This would hopefully be enough to prevent the unjustified exercise of the suspension power.

Besides, it is important to note that the Statute does not in any way confer new powers to or regulate the existing powers of the Security Council; these are matters for the UNCharter. Instead, it is drafted only to reflect the consequences for the Court when the Council is taking action.

A still unresolved question is how to balance the role of the Security Council according to the UN Charter in case of aggression (in respect of states) and the Court’s jurisdiction over the crime of aggression against individuals. As noted above, the actual exercise of jurisdiction over the crime of aggression is still open, and the Statute explicitly states that the definition of the crime and conditions for jurisdiction "... shall be consistent with the relevant provisions of the Charter of the United Nations" (Article 5, paragraph 2). The work on this issue continues.

Because of criticism that the procedures of the ICTY and the ICTR are too oriented towards common law, considerable efforts were made to create procedures that provide a hybrid of different legal systems. Thus, the procedures of the Statute do not reflect any national legal system and safeguards for fair trials originating from many legal traditions can be found. In respect of the general rights of suspects and the accused, the major yardstick was the 1966 International Covenant on Civil and Political Rights (ICCPR). These rights, to a large extent, reflect the provisions of the ICCPR, while in some instances, further steps are taken to improve these rights.

Victims are accorded a greater role than just as a means for providing evidence in the criminal process. The focus on the victims of crimes was strongly advocated by NGOs, and the Statute consequently contains a number of victim-oriented provisions. Finding a proper balance was complicated, among others, by the fact that national systems treat victims in very different ways and the number of potential victims in cases before the Court may be extremely high. The outcome is that victims have rights to participation, albeit limited in certain ways, and to protective measures outside of and during the proceedings. An even bigger achievement is that the Statute provides for reparation — including restitution, compensation and rehabilitation — to or in respect of victims. The Court shall establish principles relating to reparation, and orders may be directed against a convicted person or may be awarded from a special Trust Fund. In assisting victims and witnesses, a special unit shall be established within the Registry. Hence, the procedures are more victim-oriented than those found in many national systems, but less than what is provided for in others. This true compromise, nevertheless clearly points out that victims have an independent and important role in the process of bringing criminals to justice.²⁶

The proceedings of the Court — a true amalgamation of procedures from different legal traditions — are elucidated in great detail in the Statute.²⁷

The penalty provided for in the Statute is imprisonment, including life imprisonment, which may be combined with a fine and forfeiture of proceeds, property and assets derived directly or indirectly from the crime. This outcome could only be reached after a difficult and relatively heated debate on capital punishment. Even if it was clear to all participants that the death penalty could never be included, some states persisted with their demand to include it until very late in the diplomatic conference. For other states, life imprisonment constituted an obstacle, since their constitutions or other laws banned this form of penalty, mainly considering it to be inhumane. However, it was necessary to accept life imprisonment as a penalty in order to satisfy the proponents of capital punishment.

The compromise included a provision which emphasises that the penalties in the Statute does not affect "... the application by States of penalties prescribed by their national law, nor the law of States which do not provide for penalties prescribed in this Part" (Article 80), and a mandatory review mechanism for prison sentences.²⁸

The Court is a treaty-based body requiring the co-operation of states to function effectively. No police force was ever contemplated and, except for the Security Council referrals, no powers are vested in the Court for imposing sanctions against a state that is unwilling to co-operate. Its function will therefore depend upon states’ willingness and ability to co-operate. Although established within a different framework, this has been true in practice of the ICTY and ICTR. However, external pressure has lately made some reluctant states more co-operative.

States parties are under a general obligation to "... cooperate fully with the Court" in accordance with the provisions of the Statute (Article 86), and to ensure that national law provides for procedures for all specified forms of co-operation (Article 88). The co-operation provisions are divided into the ‘surrender’ of persons to the Court and ‘other forms’ of co-operation that are spelled out in great detail.²⁹ From an initial list of exceptions with regard to the obligation to co-operate, the final Statute only contains a few possibilities where the fulfilment of a request by the Court may be denied and, in such a case, only after consultations aimed at solving the problem. This would apply when a request for co-operation, other than the surrender of a person, is prohibited by "... a fundamental legal principle of general application" (Article 93, paragraph 3), or when it concerns information that relates to the state’s national security (Articles 72 and 93, paragraph 4).

To a strictly limited extent, the Court may conduct onsite investigations in a state party’s territory without having secured the co-operation of such a state. This may be the case when the state is clearly unable to execute a request for co-operation due to the unavailability of any authority, or in the absence of a component of its judicial system competent to fulfil the execution.³⁰ Such provisions were considered necessary for the Court to proceed efficiently, but the provisions also gave rise to fears that they could be used by states to justify interventions in other states. The preamble of the Statute therefore clearly emphasises that "... nothing in this Statute shall be taken as authorizing any State Party to intervene in an armed conflict in the internal affairs of any State."

With respect to a request to surrender a person when concurring jurisdiction is exercised, either by the requested state or by another state with a competing request for extradition, the solutions envisaged by the Statute are based upon the Court’s determination of the admissibility of the case. If the Court has ruled the case admissible, the requested state shall normally execute the Court’s request, with the possible exception of a competing request from a non-state party where the requesting state is subject to an existing international obligation to extradite the person. Besides, the state may postpone the immediate execution of a request that would interfere with ongoing proceedings in respect of another crime than the one the Court is dealing with. In addition, a provision which has proven difficult to interpret, requires that the Court must obtain a waiver of immunity in certain cases before proceeding with a request for surrender (Article 98).

The enforcement of sentences of imprisonment also needs to be undertaken outside the Court. Like the regime for ICTY and ICTR, such a sentence will be served in a state designated by the Court from a list of states that have accepted to enforce such sentences (with or without conditions). Although the system is based on voluntariness, the Court could not function without a large number of states placing prison facilities at its disposal. Hence, there is clearly a moral obligation on states parties, at least under certain conditions, to accept prisoners convicted by the Court. In addition, states parties will give effect to fines or forfeiture orders by the Court, as well as orders regarding reparation to victims.³¹

Many states favoured financing the Court through the UN system, thus avoiding financial considerations to be an obstacle for accession to the Statute. This proved to be unacceptable and, instead, the main source of funding would be contributions by states parties, assessed in accordance with an agreed scale. The scale will be based on that adopted by the UN for its regular budget. Other sources are funds provided by the UN General Assembly, in particular, in the case of referrals by the Security Council, and voluntary contributions from governments, international organisations, individuals and others. Furthermore, a trust fund for the benefit of crime victims and their families will be established into which fines and the value of forfeited assets may be transferred.³²

A remarkable achievement is that the Statute, in principle, does not provide for reservations. The main reasons for this were that reservations from different states would complicate the work of the Court and, naturally, also undermine the Statute. However, there is one exception, which allows a state to declare, when becoming a party, that it does not accept jurisdiction over war crimes when committed by one of its nationals or on its territory. Such a declaration may last for seven years, with the hypothetical possibility of extending it through a review of the provisions.³³ However, the requirements for amendments to the Statute would probably make an extension virtually impossible to achieve. This provision, which was part of the package compromise, has been heavily criticised by human rights groups and others.

The entering into force of the Statute requires sixty ratifications, which is high compared to other international instruments. As of 20 October 1999, 89 states have signed the Statute and four (Senegal, Trinidad & Tobago, San Marino and Italy) have ratified it. For many states, however, implementation legislation — or at least a thorough analysis of the need for legislation — must be presented to their parliaments together with a bill on ratification. This takes time due to the legal complexity of the Statute, and many states may have little capacity to undertake this.³⁴ Furthermore, some states also need to amend their constitutions, in particular with respect to the surrender of nationals to the Court and immunity from criminal responsibility for the head of state.³⁵

Many states are well under way with ratification. Due to the large number of ratifications required, as well as the difficult legal and political questions involved, it could be expected that it would take at least some years before the Court could come into existence.

The mandate for and intention of the negotiations were always to strive for a Court that is widely accepted on a global level. The relatively high number of ratifications required, should be seen against this background as it will ensure an adequate and representative number of states parties. Furthermore, the outcome of the vote must be considered a success in this respect. Nevertheless, having the US on board, or at least not as an enemy, would be important for a well-functioning court. The US still participates in the Preparatory Commission and is taking the opportunity to consult with other delegations on how their remaining concerns could be addressed. In this process, it is of the utmost importance to preserve the integrity of the Statute and to avoid amendments, otherwise the compromise package would fall apart. This have been highlighted by many delegations and also by regional groups, such as SADC countries in their Pretoria Statement at a conference held from 5 to 9 July 1999. At the same time, the US is in a difficult position, since it is clear that the present Congress is not likely to approve ratification of Statute.³⁶ Other major powers, like France, are well on their way with the ratification process.

The existence of an international Court exercising international jurisdiction would inevitably have an impact on state sovereignty. Even if the Court complements national jurisdictions, it is put in a position to evaluate the capacity and good faith of states’ efforts to deal with war criminals. Although the basic idea is to encourage states to fulfil their obligations to address such crimes in a proper way, experience unfortunately shows that this has far too seldom been the case. If the state does not stand the test, the Court will be empowered to exercise its jurisdiction. An interesting question, which could not be solved in the negotiations, is how the Court ought to consider efforts by a state other than prosecution and punitive justice when dealing with crimes of this nature.³⁷ It will be up to the Court to solve the question in its jurisprudence.

The establishment of the Court will hopefully result in more war criminals being brought to justice and may even function as a deterrent against such crimes. It could also be assumed that the Statute could be used as a vehicle for improving the human rights standards of the criminal procedures in some states. As mentioned before, the Statute is a compromise — a package deal — and certain provisions are far from ideal. Nonetheless, once the Court is established, the provisions may be improved and this international regime for providing justice may be strengthened. Thus, the Statute should be taken for what it is — one step forward in reducing the prevailing impunity of perpetrators of the worst imaginable atrocities and in providing justice to their victims.

This is an edited version of a paper presented a seminar about the International Criminal Court on 28 October 1999 in Pretoria, arranged by the Hanns Seidel Foundation and the Institute for Security Studies. The author is Associate Judge of Appeal in Sweden and a Legal Expert in the Swedish Ministry of Justice, at present living in Pretoria. He is a member of the Swedish ICC Delegation to the Preparatory Committee, to the Diplomatic Conference in Rome and, at present, to the Preparatory Commission on the Establishment of the International Criminal Court, where he has served as co-ordinator for informal meetings on procedural matters. The views expressed are his own.

An historical survey is presented in M C Bassiouni, From Versailles to Rwanda in seventy-five years: The need to establish a permanent International Criminal Court, Harvard Human Rights Journal, 10, Spring 1997, pp 11-62.



The Rome Statute of the International Criminal Court (UN doc. A/CONF.183/9*) is available in International Legal Material, 37(5) September 1998, pp 999-1069.

Due to the drawn-out process at the Rome Conference to achieve the broadest possible support for the Statute and the late release of the final package, as well as the general time constraint and the fact that the document is drafted in the six official languages of the UN, errors have appeared in the Statute. As depository of the convention, the Secretary-General of the UN has therefore conducted three rounds of corrections. The latest available version may be found at <www.un.org/icc>, 13 August 1999.

Major commentaries on the Statute and the negotiations are provided by R S Lee (ed), The International Criminal Court: The making of the Rome Statute — Issues, negotiations, results, Kluwer Law International, The Hague, London, Boston, 1999; H von Hebel, J G Lammers & J Schukking (eds), Reflections on the International Criminal Court — Essays in honour of Adriaan Bos, T M C Asser, The Hague, 1999; C Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court: Observer’s notes, article by article, Nomos, Baden-Baden, 1999 forthcoming. See also a number of shorter articles in the American Journal of International Law, 93(1), January 1999, pp 2-57; and comments from a South African commentator in A O’Shea, The Statute of the International Criminal Court, South African Law Journal, 116(2), 1999, pp 243-261.



Reports from the six meetings of the Preparatory Committee, written by C Keith Hall who followed the meetings for Amnesty International, are available in consecutive numbers of the American Journal of International Affairs, 91(1), January 1997, pp 177-187; 92(1), January 1998, pp 124-133; 92(2), April 1998, pp 331-339; and 92(3), July 1998, pp 548-556. The 1994 report of the ILC with a commentary is published in GAOR, 49th Session, Supp. No. 10 (UN doc. A/49/10).



Report of the Preparatory Committee on the Establishment of an International Criminal Court, UN doc. A/Conf.183/2/Add.1 (1998).



A huge benefit was that many delegates — also from the capitals — had participated in the preparatory process. For delegations from least developed countries, funding was made available through the UN and other organisations.



Two earlier draft proposals were issued on 6 July and 9 July 1999 and debated. The final Draft Statute was opposed by two states — India on the relationship to the Security Council and a weapons clause for war crimes, and the US on the jurisdiction of the Court — that proposed amendments. The proposals were turned down by a mechanism called a no-action motion and, thereafter, the US called for an unrecorded vote on the whole Statute.



The CICC has a home page at <www.igc.org/icc>, which contains many important documents (including the Statute and earlier drafts and reports), commentaries and links to other NGO home pages where their reports and recommendations can be found.



Rome Statute, Articles 3 and 62.



Rome Statute, Articles 34-35. Mainly for administrative functions, a presidency is provided for (Article 38). Furthermore, the Statute contains detailed provisions on the qualification, nomination and election of judges (Articles 36 and 37), as well as on the chambers, the independence, excusing and disqualification of judges and removal from office (Articles 39-41 and 46).



Due to the powers vested in the Prosecutor, Deputy Prosecutors and the Registrar, detailed provisions on qualifications, removal from office, etc., are given in the Statute (Articles 42-43 and 46-47).



See in particular Rome Statute, Articles 87 paragraph 7, 112-113 and 121-123. The Assembly of States Parties will also decide on the budget of the Court and issue financial regulations.



On different methods for the establishment of the Court and other issues, see J Dugard, Obstacles in the way of an International Criminal Court, Cambridge Law Journal, 56(2), July 1997, pp 329-342.



In respect of war crimes, the Statute bans the use of weapons, projectiles and material and methods of warfare which can "... cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict", and which are to be included in an annex to the Statute (Article 8 paragraph 2(b)(xx)). Thus, the inclusion of certain types of weapons was postponed until the states parties can amend the Statute.



At one stage of the Diplomatic Conference, the dispute was so heated that there was a risk that the battle, in particular between religion and gender politics, could jeopardise an agreement. See War crimes treaty stalls over inclusion of rape, International Herald Tribune, 10 July 1998. This debate, which was linked to different approaches to abortion and to homosexuality, was solved through new definitions of ‘forced pregnancy’ and ‘gender’. See Article 7 paragraph 2(f) and 3. On this issue, see also B Bedont & K Hall-Martinez, Ending impunity for gender crimes under the International Criminal Court, Brown Journal of World Affairs, 6(1), Winter/Spring 1999, pp 65-85.



Rome Statute, Articles 5, 121 and 123.



Rome Statute, Articles 20 and 22-33.



Rome Statute, Articles 12 and 124.



The South Korean proposal, which most like-minded states favoured, also included — as additional options for jurisdiction — the state whose nationals are victims of the crime or the state where the suspect is held in custody (which, for example, would both cover the Pinochet case; see note 19).



For more information on the case and further references, see International Legal Material, 38, May 1999, pp 581-663.



Rome Statute, Article 8, paragraph 2(b)(xxvi) and (e)(vii), and 26.



Rome Statute, Article 17, paragraph 1(d), and 53, paragraph 1(c) prove this principle.



Rome Statute, Articles 17, 18 and 19. A non-state party may also accept the Court’s jurisdiction in a given case (Article 12, paragraph 3).



See, for example, B S Brown, Primacy or complementarity: Reconciling the jurisdiction of national courts and international criminal tribunals, Yale Journal of International Law, 23(2), Summer 1998, pp 383-436; I Tallgren, Completing the ‘International Criminal Order’, Nordic Journal of International Law, 67(2), 1998, pp 107-137; R Dicker & H Duffy, National courts and the ICC, Brown Journal of World Affairs, 6(1), Winter/Spring 1999, pp 53-63.



See RBPhillips, The International Criminal Court statute: Jurisdiction and admissibility, Criminal Law Forum, 10(1) 1999, pp 61-85.



Rome Statute, Articles 13-15.



Rome Statute, Articles 43, paragraph 6, 68 and 75. The victim’s right to participate is somewhat stronger in respect of challenges to the jurisdiction of the Court or the admissibility of a case (see Article 19 paragraph 3).



Rome Statute, Articles 53-61 (pre-trial), 62-76 (trial) and 81-85 (appeal and revision).



Rome Statute, Articles 77-80 and 110.



Rome Statute, Articles 86-102.



Rome Statute, Articles 57, paragraph 3(d), and 99, paragraph 4.



Enforcement of orders and sentences are dealt with in Rome Statute, Articles 75 and 103-111.



Rome Statute, Articles 79 and 113-118.



Rome Statute, Articles 120 and 124. It should also be noted that the exercise of the ‘opt-out’ possibility would cover all war crimes, including the so-called grave breaches, which makes the political price for using the option higher.



Regional initiatives have been taken in order to assist in providing the necessary legislation for implementation of the Statute. One such initiative is the ICC Ratification Kit — MODEL Enabling Act that was drafted at the SADC Workshop on Ratification of the Rome Statute in Pretoria, 5-9 July 1999.



In France, the Constitution has been amended on 8 July 1999 (Law 99-568) with a general provision recognising the jurisdiction of the Court on the conditions set forth in the Statute, and Germany is said to be preparing an amendment with respect to ‘surrendering’ its nationals to the Court.



Many articles have been written on the US position in respect of the Court, either critical of its position or critical of the Statute. The present concerns of the administration seem to be quite similar to what has been put forward in R Wedgwood, An International Criminal Court: An American view, European Journal of International Law, 10(1), 1999, pp 93-107. For a more radical criticism of the Statute, see the views of J Helms, Slay this monster, Financial Times, 30 July 1998; A P Rubin, Challenging the conventional wisdom: Another view of the International Criminal Court, Journal of International Affairs, 52(2), Spring 1999, pp 473-491.



See DDNtanda Nsereko, The International Criminal Court: Jurisdictional and other issues, Criminal Law Forum, 10(1), 1999. pp 87-120.