An overview of the International Criminal Court and outstanding issues
Mahnoush H. Arsanjani *

Last year, the United Nations Diplomatic Conference on the Establishment of an International Criminal Court took place in Rome for a period of 5 weeks and completed a task, begun nine years earlier, by adopting the Rome Statute for the International Criminal Court. One hundred and sixty States, thirty-three inter-governmental organizations and a coalition of two hundred and sixty non-governmental organizations participated in the Conference. The Rome Statute was adopted by a vote of 120 in favor, 7 against and 21 abstentions. The United States voted against the Statute.Three other Permanent members of the Security Council, France, the United Kingdom and the Russian Federation supported the Statute. So far, the Statute has 86 signatures and 4 ratification.

The Statute has three underlying principles. The first, the principle of complementarily, establishes that the Court may assume jurisdiction only when national jurisdictions are unable or unwilling to exercise jurisdiction. Thus, in cases of concurrent jurisdiction between national courts and the International Criminal Court, national courts have, in principle, priority. The International Criminal Court (hereafter ICC) is not intended to replace national courts, but only operates when national courts are unwilling or unable to operate. The second principle is that the Statute is designed to deal only with the most serious crimes of concern to the international community as a whole. This principle affected the selection of the crimes as well as the determination of their threshold of application. The third principle was that the Statute should, to the extent possible, remain within the realm of customary international law. This approach was to make the Statute widely acceptable. The place to reflect this approach was in the definition of crimes.

Conscious efforts were also made to harmonize the general principles of criminal law and rules of procedure of the common law and civil law systems in many Parts of the Statute. As a result, the provisions dealing with general principles and procedural issues are a hybrid between the common and the civil law. (For example, while the adversarial character of a trial is maintained, judges are assigned a much broader competence in matters dealing with investigation and questioning witnesses.)

What are the crimes under the Court's Jurisdiction?

The Court has jurisdiction over genocide, crimes against humanity and war crimes. Genocide, defined in article 6, was the only crime that received a quick and unanimous consensus. Its definition follows verbatim article II of the Convention on the Prevention and Punishment of the Crime of Genocide of 1948.

Contrary to the general expectation, crimes against humanity (article 7) proved difficult to negotiate. In the earliest phase of negotiation, it became clear that a short article on crimes against humanity modeled after article 5 of the Statute of the Yugoslav Tribunal would be unacceptable to the majority of states. There were also disagreements on whether crimes against humanity should be limited to those occurring in time of armed conflicts and on the threshold of the gravity of the crime. It was ultimately agreed that the crimes against humanity are not limited to the time of armed conflict but they would have to be committed As part of a widespread or systematic attack directed against any civilian population, with the knowledge of that attack. Crimes against humanity may be committed not only by or under the direction of state officials but also by Organizations. The word "organizations" includes terrorist organizations, organizations of insurrectional or separatist movements, etc.

Crimes against humanity includes torture, rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; deportation or forcible transfer of population, enforced disappearance of persons and apartheid. Persecution is also a crime against humanity but only in connection with other crimes and not as a separate crime.

From the start of the negotiations on the Statute, war crimes proved to be one of the most intractable issues. Special difficulties arose in regard to the inclusion of certain topics: Protocol II Additional to the Geneva Conventions, internal armed conflicts; and nuclear weapons in the list of prohibited weapons.

Some states took the position that only those war crimes that are recognized, as such by customary international law should be included. This position supported the inclusion of the 1949 Geneva Conventions, the 1907 Hague Convention and the 1929 Geneva Conventions. Others pressed for the inclusion of the Protocols Additional to the Geneva Conventions. Some opposed any inclusion of crimes occurring in internal armed conflict, while others insisted on their inclusion. As a result of these conflicting positions, the text of the article on war crimes was drafted in four sections: grave breaches of the 1949 Geneva Conventions; war crimes under Protocol I Additional to the Geneva Conventions; Common article 3 of the four Geneva Conventions; and breaches under Protocol II. This structure, which had been created to facilitate negotiation, survived as the final structure of the article on war crimes in the Rome Statute. But the text that emerged did not always maintain the four distinct categories. It also drew from other treaties. Indeed, many of the provisions in the last category of war crimes are drawn from Protocol I, the Geneva Conventions and the Hague Conventions. Although some of these norms were originally intended to apply to international armed conflicts, the drafters of the Rome Statute thought that they should also apply to internal armed conflicts.

With respect to the threshold of war crimes, some states took the position that the decision that the Court was to have jurisdiction over serious crimes of concern to the international community necessarily implied that not every war crime could fall within the jurisdiction of the Court. Only those crimes committed As part of a plan or policy or as part of a large-scale commission of such crimes fell within its jurisdiction. Some other states did not agree and felt that the word Only would raise the threshold unnecessarily. The compromise language now appears in article 8(1) on war crimes reads that the Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes. The inclusion of the words in particular was intended to indicate the type of war crimes over which the Court has jurisdiction.

Article 8 on war crimes is a complicated and long article. It contains approximately 50 types of war crimes. One of the concerns of some of the negotiators and in particular of the United States was how best to incorporate fully the laws of armed conflicts that is jus in bello in the Statute. They were not as such reflected in the definition of crimes nor were they reflected in the article dealing with the defenses to criminal responsibility. The compromise solution was to incorporate in the opening clauses of subparagraph 2(b) and 2(e) of article 8 dealing primarily with crimes under Protocols I and II are qualified by the words within the established framework of international law. Similarly, article 21, lists among applicable law, "the established principles of the international law of armed conflict". These two clauses are intended to include implicitly jus in bello considerations such as military necessity, reprisals and proportionality.

Two issues concerning prohibited weapons raised problems: nuclear weapons and the inclusion of general language, which could prohibit the use of future weapons with particular characteristics. The inclusion of nuclear weapons, which was supported by the majority of the participating states at the Rome Conference, was strongly opposed by some major nuclear powers. In order to encourage at least some of the major nuclear powers to support the adoption of the Statute, the reference to nuclear weapons was finally deleted. The inclusion of prospectively prohibitive language, which would have provided a general description of weapons that could be prohibited at some stage in the future, was opposed by more states. In their view, such a catch-all and open-ended clause was incompatible with the principle of legality requiring absolute clarity in a criminal code. They insisted that any prohibited weapon should be clearly stated in the Statute before its use becomes criminalized. As a compromise, a language was included in the war crimes article, which prescribes three criteria for the inclusion of new weapons the use of, which will be considered war crimes. First, new weapons must be of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict. Second, such weapons must be the subject of a comprehensive prohibition. Third, such weapons are included in an annex to the Statute, by an amendment in accordance with the relevant provisions of the Statute. This language leaves open the possibility for the inclusion of nuclear weapons. However, nuclear weapons or any new weapons can only be included through an amendment or review procedure of the Statute. Moreover, even were a new weapon included among the list of prohibited weapons by amending the Statute, it would be binding only on those states that had ratified the amendment.

The war crimes provisions dealing with internal armed conflict had to be qualified to forge consensus. The qualification provides that the article does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. The article, however, applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups. (This language is based on article 1(1) of Protocol II in order to clarify further the scope of the subparagraph.)

A further safeguard is included in paragraph 3 of article 8 on war crimes based on article 3 of Protocol II dealing with non-intervention in the internal affairs of states. It was introduced to relieve the concerns of some states.

Now let me a few words about the crimes, which were not included or defined in the Statute.

In addition to the three crimes that are defined in the Statute, a few other crimes were discussed as possible candidates for inclusion in the Statute. One was aggression, which had overwhelming support in the earlier stages of negotiations but faced definitional problems at the Rome Conference. The intractable issue proved to be the role of the Security Council in the determination of aggression. While many states preferred a fixed and independent definition of aggression unsusceptible to review by the Security Council, other states, including the five Permanent Members, took the position that the Court could only exercise jurisdiction with respect to this crime when the Security Council had determined that there was an act of aggression. Ultimately, a compromise was reached: article 5(2) of the Statute lists the crime of aggression as one of the crimes within the jurisdiction of the Court. But the Court may exercise jurisdiction only when the crime is defined and the conditions for the exercise of jurisdiction by the Court has been agreed upon.

Some states also supported inclusion of drug trafficking and terrorism. At the Rome Conference, it became clear that the Conference could not come up with generally agreed definitions for these crimes. Not to spoil the Conference, a compromise was reached. The crimes of terrorism and drug trafficking while were not included in the Statute, were included in a resolution adopted by the Conference, recommending that the Review Conference consider them with a view to arriving at an acceptable definition and their inclusion in the list of crimes within the jurisdiction of the Court.

What is the Structure of the Court?

ICC is a standing institution with its seat in The Hague. It is composed of four organs: the Presidency; an Appeals, a Pre-Trial and a Trial Division; the Office of the Prosecutor and the Registry. The Court has 18 judges, nominated and elected by states parties. The judges are elected as full time personnel and shall be available to serve on that basis. But the Statute anticipates the possibility that some of the judges, other than the President and Vice-Presidents, may be part time depending on the workload of the Court.

What are the bases for the Jurisdiction of the Court?

The Court has jurisdiction over the crimes listed in the Statute, if it has the consent of the state of territory where the crime is committed or the consent of the state of nationality of the accused. The Security Council may also refer a situation to the Court. One concern throughout the negotiations, expressed mostly by the Permanent Members of the Security Council, was the possibility of conflict between the jurisdiction of the Court and the functions of the Security Council. There may be situations in which the investigation or prosecution of a particular case by the Court could interfere with the resolution of an on-going conflict by the Council. A compromise formula was reached by which the Security Council, acting under Chapter VII, could request deferral of an investigation or a prosecution for a period of 12 months. Ms. Fernandez will discuss this issue.
Under the Statute, the Court must satisfy itself that it has jurisdiction in any case brought before it. The jurisdiction of the Court is not retroactive to crimes committed before the entry into force of the Statute.

Who may bring a case before the Court?

A state party or the Security Council, acting under Chapter VII of the Charter, may refer a situation to the Court. The Prosecutor may also initiate an investigation proprio motu subject to authorization by the Pre-Trial Chamber. The Pre-Trial Chamber has broad competencies over the independence of the Prosecutor.

In cases where a situation has been referred by a state or the Prosecutor is exercising proprio motu powers, the Prosecutor must inform all states parties to the Statute as well as non-state parties which would normally exercise jurisdiction over the crimes concerned.

The complementarity character of the Court to national jurisdictions is most clearly manifested in the provision dealing with admissibility issues addressed in article 17 and will be discussed by Ms. Fernandez.

Who may challenge the Court's Jurisdiction?

The Court's jurisdiction may be challenged by an accused; the state which has jurisdiction over the case on the ground that it is investigating or prosecuting the case or has investigated or prosecuted the case; or the state in whose territory the crime is committed or the state of the nationality of the accused whose consent to jurisdiction of the Court is required.

What is the applicable Law?

The Statute provides a strict hierarchy among the rules of law to be applied by the Court. The Court must first apply the Statute, Elements of Crimes and its Rules of Procedure and Evidence. The Elements of Crimes must be read together with article 9, in which Elements of Crimes are included so as to assist the Court in the interpretation and application of articles on the definition of crimes. Second, the Court must apply relevant applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict. The latter phrase was intended to include the jus in bello. In the third place, the Court shall apply general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the laws of the states that would normally exercise jurisdiction over the case so long as they are consistent with the Statute and international law. In addition to this hierarchy, the Court may also draw on its own jurisprudence from previous cases. Even though the three categories were inspired by article 38 of the Statute of the International Court of Justice, they are substantially and structurally different from article 38.

The Statute sets out in Part 3 substantive criminal law, including the basis for individual criminal responsibility and grounds for excluding criminal responsibility. ICC lacks jurisdiction over any person under the age of 18 at the time the crime was committed.

The official position of the individual or any immunity or special procedural rules which may attach to the individual due to his or her official capacity will not bar the jurisdiction of the Court.
The Statute does not preclude the competence of the Court over criminal conduct of individuals covered by amnesties or truth-commissions. But it allows the Prosecutor not to proceed with investigation if it would not serve the interest of justice. Such a decision by the Prosecutor may be reversed by the Pre-Trial Chamber.

Death penalty is excluded from the Statute. However, death penalty is permitted under national laws for crimes committed under the Statute.

States parties to the Statute are obliged to cooperate with the Court and they shall ensure that their domestic laws provide for the forms of cooperation specified under the Statute.

In accordance with Part 11 of the Statute there will be an Assembly of States Parties which will meet once a year and will provide oversight for the Court and its operation. The Assembly, among other functions, approves the budget of the Court. Expenses of the Court shall are paid from assessed contributions made by states parties and funds provided by the United Nations subject to the approval of the General Assembly, in particular in relation to expenses incurred in cases of referral by the Security Council. The Court may also receive funds from governments and non-governmental entities and individuals.

The Statute does not allow any reservations, but a state party may opt-out of the provision giving the ICC jurisdiction over war crimes for a period of 7 years.

What are the Current outstanding Issues?

In accordance with a resolution adopted at the Rome Conference, a Preparatory Commission will be established to prepare among others, a text for Elements of Crimes, Rules of Procedure and Evidence, Privileges and Immunities for the Court, Financial Regulations and Rules, and the first budget of the Court. Under the resolution, the Preparatory Commission must complete its work on two of the instruments by 30 July 2000. Those two instruments are Elements of Crimes and the Rules of Procedure and Evidence.

The Preparatory Commission already met twice and has made good progress on drafting the two priority instruments. Perhaps one of the more difficult tasks of the Preparatory Commission is drafting the document on Elements of Crimes. The United States proposed the preparation of Elements of Crimes. The United States took the position that the crimes in the Statute are not sufficiently defined and the principle of legality dictated a further and full definition of elements of the crimes. The Rome Conference reluctantly approved the US proposal but with the understanding that the instrument on the elements of crimes will be used to assist in interpreting the definition of crimes under the Statute. Considering that in accordance with the Statute, Elements of Crimes should be used for interpretation purposes, the form in which this instrument is drafted becomes crucial. To begin with, any document that tends to elaborate on the definition of the crimes in the Statute is in a way circumscribing those definitions. The work of the last two sessions of the Preparatory Commission on Elements of Crime, in fact, could significantly change the legal nature of this document. Elements of crimes, so far, are identified as a checklist of elements that comprise a particular crime. Such a drafting format is more appropriate for a constitutive rather than an interpretative instrument. This is a matter that is currently under consideration by the Prepcom.

The Preparatory Commission has to deal with two more important and rather controversial issues:

1) finding an acceptable definition for the crime of aggression, and

2) to discuss ways to enhance the effectiveness and acceptance of the Court.
With respect to the definition of crime, Resolution F adopted at the Rome Conference includes as one of the functions of the Prepcom the preparation of proposals for a provision on aggression including the definition of the crime, its elements and conditions under which ICC may exercise jurisdiction. Even though preparing a definition for aggression is not given priority in the Statue, a number of States have been pressing hard for dealing with it on a priority basis. So far discussions in the Prepcom do not indicate any change in the views of delegations on the subject. The fear is that lack of progress on this front may spoil the positive atmosphere in the Prepcom.

With regard to the second issue, that is to discuss ways and means to enhance the effectiveness and acceptance of the Court, it is even more complicated. This rather vague request entered into the mandate of the Prepcom not at the Rome Conference, but at the General Assembly. The intention behind this request is the concern by the United States about the jurisdictional clause of the ICC. In the view of the United States ICC should have jurisdiction over individuals only with the consent of the State of nationality of the accused. This view, of course, was rejected at the Rome Conference by an overwhelming majority of the participating States. It remains to be seen, what else may be done to alleviate the concerns of the United States.

*  The views expressed are those of the author and do not necessarily represent the views of the United Nations.