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Volume XXXIII No. 3 (July-September 1998)
Is the Rome Statute of the International Criminal Court a Real Breakthrough in International Law?
By Natalino Ronzitti
On 17 July 1998, the Rome Diplomatic Conference adopted the Statute of the International Criminal Court (ICC), after five weeks of deliberation. A consensus was not reached and votes cast were 120 for, 7 against and 20 abstentions. Among states voting against were two members of the UN Security Council (the United States and China), four Arab countries (Libya, Qatar, Iraq, Yemen), and Israel. At the very last moment, France withdrew its opposition and cast a positive vote, thus joining the other European Union partners.
The negative vote of the United States and the compromise required to bring France in are not without consequences for the universality of the Court and its effectiveness and cast a gloomy shadow over its future and the general enthusiasm that pervaded the conclusion of the Rome Conference, since the adoption of the ICC Statute is not the end of the game. A preparatory commission (prepcom), consisting of the states that have signed the Final Act and the other states invited to participate in the Conference, shall be convened by the UN Secretary General to perform important tasks, such as drafting ICC Rules of Procedure and Evidence and preparing a text containing the “Elements of Crimes”—which were left unresolved by the Conference—and proposals for a provision on aggression, a crime which has not yet been defined in an instrument having legal force (the 1974 General Assembly resolution on the Definition of aggression has no obligatory value). The danger exists that those states that opposed the adoption of the ICC Statute (above all the US and China) and those which were converted to its cause at the very last moment (France) will do their best to delay the work of the prepcom. Another risk is connected with the time required for the ICC Statute to come into force: sixty ratifications are needed and this takes time. Constitutional constraints in many states may delay the ratification process. Even signatures are not proceedings very quickly: while 30 states signed the ICC Statute at the closure of the Rome Conference, very few have added their signature since. Further obstacles are not inconceivable. Will the United States be tempted to try to change the ICC Statute before its entry into force? Such a procedure was followed, for the first time, with the United Nations Convention on the Law of the Sea and proved to be successful.
The ICC Statute is hailed by those who believe that an international criminal court can deter the perpetration of the most heinous crimes and ensure a lasting peace based on justice. They construe the international community as a kind of a superstate, the civitas maxima, a sort of world federation, in which states, far from being entities endowed with sovereignty, are provinces of the same community. Unfortunately, the present status of international relations is based on a different model and the United Nations is not a superstate.
International crimes are not a novelty of the ICC Statute. Their definition goes back to the birth of the international community and for a long time they fell into a sole category: that of war crimes. International law authorized belligerents to try and to punish enemy soldier who had committed such crimes and peace treaties usually contained an amnesty clause ensuring impunity for war criminals of either side. After World War I, the amnesty clause became unilateral, in the sense that it ensured impunity only for the victor. The Nuremberg and Tokyo trials were the first examples of international tribunals, even if the accusations that they created ex post facto law and served the justice of the victors are not totally unfounded. They show, however, that international tribunals can function only in an occupied territory, when the enemy suffers a total defeat (debellatio) and the occupying powers have the power to arrest and bring to justice those who committed international crimes. The International Tribunal for the Former Yugoslavia (ITFY) and the companion Tribunal for Rwanda were established with UN Security Council resolutions. Yet the former did not succeed in having the masterminds behind and those bearing major responsibility for the atrocities tried, with the only meagre result, in this respect, being the indictment of Karadzic and Mladic, while the record of the latter is even poorer. Moreover the ITFY did not exert any deterrent role since it did not impede the massacres of Srebrenica.
Now the hope of future generations rests in the hands of the ICC. The Court will consist of 18 judges, a prosecutor and a registrar. It will have an appeals, a trial and a pre-trial division. The judges will be elected by the Assembly of States Parties, which is composed of the states parties to the ICC Statute. The prosecutor shall be elected by secret ballot by an absolute majority of the members of the Assembly of States Parties. The possibility of a prosecutor from a Third World country being elected is high and his/her substantial powers are one of the reasons why the United States was against the present wording of the ICC Statute; it fears that frivolous accusations could be made against US peacekeepers and soldiers dispatched abroad.
Unlike the Former Yugoslavia and Rwanda Tribunals, the ICC does not have priority vis-à-vis national courts. Its competence is founded on the principle of “complementarity”, in the sense that the ICC can judge only in those cases in which a national tribunal is “unwilling or unable genuinely to carry out the investigation or prosecution”. The principle is that criminals should not go unpunished: they should be tried either by internal tribunal or by the ICC. Though the notion of unwillingness and inability are spelled out in the Statute, one can envisage that, in the most important cases, a conflict between the ICC and national courts will delay (or, in the worst instances, paralyze) the course of justice.
The proceedings before the ICC may be triggered upon referral of a situation by a State party, by the UN Security Council or by the prosecutor, who has the power to initiate an investigation. This is a positive feature. States are often unwilling to bring a case before the Court if diplomacy recommends they keep quiet. On the other hand, the Security Council is a political body and political calculations may advise against triggering such a mechanism. Moreover, a permanent member can block an action aimed at referring a situation to the Court. On the contrary, the prosecutor will act in complete independence and will be more eager to take action, even though his initiative may be challenged and investigations blocked by the Pre-Trial Chamber. Trial of the accused in absentia is not permitted.
The powers conferred on the Security Council are paramount. It may not only bring a case before the Court, even when the state in which the crime has been committed is not party to the Statute or the person accused is not a national of that state, but it can also block or suspend the investigation or prosecution for 12 month (renewable), if the Court is so requested under a Chapter VII resolution. This means that Security Council permanent members that do not ratify the convention establishing the ICC will have a say, both in triggering the ICC mechanisms and in temporarily blocking or suspending the proceedings. Conflicts between the Security Council and the ICC are not excluded.
The inadmissibility of reservations is a positive element. Another positive feature is the fact that the Statute, in defining war crimes, has followed the current developments in international humanitarian law, recognizing that international crimes may be committed not only during an international armed conflict, but also during a civil war. Moreover, the ICC Statute embodies an comprehensive set of general principles of international criminal law.
Besides these positive elements, however, the Statute also contains important flaws. The jurisdiction of the Court comprises genocide, crimes against humanity, war crimes and the crime of aggression. But the Court may judge the crime of aggression only once it has been defined and the procedure requires that the Statute be amended. Given that it took the UN Generally Assembly more than twenty years to produce a resolution which is a mere guide for the Security Council, it is difficult to see how states parties to the ICC Statute will be more successful. Moreover, what value (both from a political and legal point of view) can the definition of aggression have if it does not meet the consensus of all permanent members of the Security Council? Will the United States and China concur in the definition while staying outside the Court? Without a decent definition of aggression the Court cannot judge crimes against peace, the crimes for which Nazi leaders were tried and hanged at Nuremberg!
War crimes fall under the jurisdiction of the ICC. However states are allowed to “opt out”, in the sense that they may declare that they do not accept the competence of the Court for war crimes committed on their territory or by their nationals for a period of seven years after the entry into force for them of the ICC Statute. This clause is the price paid to get France to vote in favour and a lure for the United States which, this notwithstanding, voted against. The seven years opting out clause cannot be extended for another period. Yet, the explicit mention that the provision containing the opting out clause will be reviewed at the ICC Statute review conference, which shall be held seven years after the entry into force of the treaty, means that the door is left open for considering an extra ex-gratia period.
Other flaws are hidden behind the technicalities of the ICC Statute, such as those making punishment of crimes related to the use of prohibited weapons conditional upon the drafting of a list of such weapons to be inserted in an annex to the ICC Statute, or the amendment procedure which provides a way out for states willing to limit the Court’s jurisdiction.
As said at the beginning, it is difficult to transplant institutions that have their origin in the national legal order, such as a criminal court, into the international context. The Court is not endowed with police forces tasked to penetrate foreign states and arrest international criminals; it is obliged to rely on the cooperation of member states. Does the Court have any remedy for non cooperative states that refuse to surrender a culprit? Not unless the proceedings are triggered by the Security Council, in which case mandatory sanctions under Chapter VII may be taken. If the case is brought before the Court by a state or by the prosecutor, a non-cooperative attitude can only be “considered” by the Assembly of the States Parties.
Nationals of non-party states committing an international crime in the territory of a state party are, in principle, subject to the jurisdiction of the Court. However, the territorial state is allowed to abide by the obligations stemming from other provisions of international law, with the consequence that it may be released from the obligation to surrender the wrongdoer. This could be the case of states, like the US, that do not intend to ratify the ICC Statute. If they dispatch troops to a country party to the Statute, their soldiers will be covered by the Status of Forces Agreement (SOFA) signed with the host state, under which immunity from criminal proceedings is usually stipulated. Since the jurisdiction of the ICC over troops stationed abroad has been the most sensitive issue for the United States, one can imagine that future SOFAs concerning the United States will contain a clause under which US soldiers are under exclusive US jurisdiction. The same holds true for those states that will avail themselves of the opting out clause allowing them to be excluded from the jurisdiction of the Court on war crimes committed by their nationals.
Up to now the punishment of international crimes has been entrusted to individual states, which have the obligation to punish or extradite the criminals. This system has not proved too successful, yet the two ad hoc tribunals established by the Security Council, respectively for the former Yugoslavia and Rwanda, do not have a better record. The cause of international justice certainly demands the international crimes be punished and potential criminals deterred. It remains to be seen whether the institution of an international criminal tribunal, like the one framed at the Rome conference, will have the authority to achieve such a lofty goal.
Natalino Ronzitti is Professor of International Law at LUISS University, Rome, and Scientific Advisor for the IAI.