Truth About The International Criminal Court," by Benjamin Ferencz, July 2002
See Also: "Know the Truth About The International Criminal Court," by Benjamin Ferencz, July 2002
The following is mirrored from its source at: http://www.un.org/News/facts/iccfact.htm.
The International Criminal Court
In July 1998 in Rome, 120 Member States of the United Nations adopted a treaty to establish -- for the first time in the history of the world -- a permanent international criminal court. This treaty entered into force on 1 July 2002, sixty days after sixty States have become parties to the Statute through ratification or accession.
"The long-held dream of a permanent International Criminal Court is nearing reality," United Nations Secretary-General Kofi Annan said recently. "Our hope is that, by punishing the guilty, the ICC will bring some comfort to the surviving victims and to the communities that have been targeted. More important, we hope it will deter future war criminals, and bring nearer the day when no ruler, no State, no junta and no army anywhere will be able to abuse human rights with impunity."
This fact sheet addresses some of the common questions about the Court.
Why did countries decide to set up an International Criminal Court? How is it different from other courts?
In 1948, following the Nuremberg and Tokyo tribunals after the Second World War, the United Nations General Assembly first recognized the need for a permanent international court to deal with the kind of atrocities that had recently taken place. Since then, the need for such a court has been discussed off and on at the UN. The scope, scale and hateful nature of atrocities that have taken place during the last 20 years in many parts of the world gave impetus to creating a permanent mechanism to bring to justice the perpetrators of such crimes as genocide, ethnic cleansing, sexual slavery and maiming, including amputation of limbs of non-combatants, even women and children, and to finally put an end to the impunity so often enjoyed by those in positions of power.
In the aftermath of the events in Rwanda and the former Yugoslavia, the United Nations Security Council responded by creating tribunals to bring individual perpetrators to justice. However, tribunals established after the fact are typically bound by mandates that are specific in time and place. To establish such a tribunal is a challenging, lengthy and expensive undertaking. A permanent court with a mandate to bring to justice individuals responsible for the world's most serious crimes, atrocities and mass murders will be more effective and efficient. It will be able to take action quickly, and possibly limit the extent or duration of violence; by nature of its very existence, it will provide a much stronger deterrent. Potential war criminals might reconsider carrying out their plans when they know that they may be held accountable -- as an individual -- even if they are a head of State. The International Criminal Court, established as an independent entity, will be able to act regarding crimes within its jurisdiction without a special mandate from the United Nations Security Council.
What crimes will the Court try?
The Court has a mandate to try individuals rather than States and to hold them accountable for the most serious crimes of concern to the international community -- genocide, war crimes and crimes against humanity, and, eventually, the crime of aggression. A common misperception is that the Court will be able to try those accused of having committed such crimes in the past, but this is not the case. The Court will have jurisdiction only over crimes committed after 1 July 2002, when the Statute entered into force.
Genocide is defined as a list of prohibited acts, such as killing or causing serious harm, committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.
As set out in the Statute, crimes against humanity include crimes such as the extermination of civilians, enslavement, torture, rape, forced pregnancy, persecution on political, racial, national, ethnic, cultural, religious or gender grounds, and enforced disappearances -- but only when they are part of a widespread or systematic attack directed against a civilian population.
The "widespread or systematic" qualification for crimes against humanity is very important, as it provides a higher threshold, requiring a particular magnitude and/or scope before a crime qualifies for the Court's jurisdiction. This differentiates random acts of violence -- such as rape, murder, or even torture -- that could be carried out, perhaps even by soldiers in uniform, but which may not actually qualify as crimes against humanity.
War crimes include grave breaches of the Geneva Conventions and other serious violations of the laws and customs that can be applied in international armed conflict, and in armed conflict "not of an international character", as listed in the Statute, when they are committed as part of a plan or policy or on a large scale.
Aggression has been included as a crime within the Court's jurisdiction. But first, the States Parties must adopt an agreement setting out two things: a definition of aggression, which has so far proven difficult, and the conditions under which the Court could exercise its jurisdiction. Several proposals have been considered. Some countries feel that, in line with the UN Charter and the mandate it gives to the Security Council, only the Council has the authority to find that an act of aggression has occurred. If this is agreed, then such a finding by the Council would be required before the Court itself could take any action. Other countries feel that such authority should not be limited to the Security Council. There are proposals under consideration that would give that role to the General Assembly or to the International Court of Justice, if an accusation of aggression were made and the Security Council did not act within a certain time. In September 2002, the Assembly of States Parties to the Court established a special working group, open to all States, to elaborate proposals for a provision on aggression.
What about terrorism and drug trafficking?
In Rome, there was significant interest in including terrorism in the Court's mandate, but it was decided not to do so. Today, in addition to various treaties prohibiting many specific acts of terrorism, and in the aftermath of 11 September 2001, the Member States of the UN have undertaken the drafting of a comprehensive convention against terrorism. At a future review conference, if the States Parties so decide, the crime of terrorism could be added to the Court's jurisdiction.
It was the interest of a Member State (Trinidad and Tobago) in establishing an international court to prosecute crimes of drug trafficking that revitalized the process culminating in the establishment of the International Criminal Court. During the negotiations in Rome, delegations realized that, because of the magnitude of the problem of drug trafficking, to include it in the Court's mandate, with the investigations that would be required, would very likely result in the Court's limited resources quickly being overwhelmed. But drug trafficking could also be added in a future review conference.
What is the relationship between the international Court and national courts?
The Court's jurisdiction is very carefully set out in the Statute. The entire premise of the Court is based on the principle of complementarity, which means that the Court can only exercise its jurisdiction when a national court is unable or unwilling to genuinely do so itself. The first priority always goes to national courts. The International Criminal Court is in no way meant to replace the authority of national courts. But there may be times when a State's court system collapses and ceases to function. Similarly, there may be governments that condone or participate in an atrocity themselves, or officials may be reluctant to prosecute someone in a position of great power and authority.
What conditions are required for the Court to act? When can it do so?
There are clear conditions specified in the Rome Statute under which the Court can exercise its jurisdiction, as well as specific requirements as to when the Court can do so. There are many safeguards to prevent frivolous or politically motivated prosecutions from taking place, with ample, repetitive opportunities for challenges. When a State ratifies the Statute, it agrees to accept the jurisdiction of the Court over the crimes listed in the Statute. The Court may exercise its jurisdiction in situations that meet one of the following conditions: one or more of the parties involved is a State Party; the accused is a national of a State Party; the crime is committed on the territory of a State Party; or a State not party to the Statute may decide to accept the court's jurisdiction over a specific crime that has been committed within its territory, or by its national. But these conditions do not apply when the Security Council, acting under Chapter VII of the Charter, refers a situation to the Prosecutor.
But something else must happen first, before the Court can act. Either a State Party refers a "situation" to the Prosecutor; the Security Council refers a "situation" to the Prosecutor; or the Prosecutor initiates an investigation on his own authority, as set out in the Statute.
What is the Preparatory Commission? What did it do?
The Preparatory Commission for the International Criminal Court was established in 1998 by a resolution of the Final Act of the Rome Conference. It was assigned a number of tasks to be completed for the establishment and smooth functioning of the Court. The Preparatory Commission is open to participation by representatives of States that signed the Final Act or were invited to participate in the Conference. In July 2002, it completed the tasks assigned to it, thus fulfilling its mandate, and in September 2002 it submitted its report to the first session of the Assembly of States Parties to the Rome Statute of the International Criminal Court, held in New York. Among the texts finalized -- essential to the successful functioning of the Court -- were the Rules of Procedure and Evidence, the Elements of Crimes, the Relationship Agreement between the Court and the United Nations, the Financial Regulations, the Agreement on the Privileges and Immunities of the Court, the Rules of Procedure of the Assembly of States Parties, the budget for the first financial period, basic principles governing a Headquarters Agreement between the Court and the Government of the Netherlands (the host country), as well as procedures for the nomination and election of judges, the Prosecutor and Deputy Prosecutor. The Preparatory Commission will forward the completed drafts to the Assembly of States Parties for its consideration and adoption. Following the conclusion of the first session of the Assembly of States Parties, a second resumed first session will be held in April 2003, and the Preparatory Commission will cease to exist.
What is the significance of the Elements of Crimes and the Rules of Procedure and Evidence? Can they change the intent of the Statute?
The completion of the Elements of Crimes is considered a landmark achievement in and of itself, because of its contribution to the development of international law. It is a cataloguing of the conditions, contexts and mental component, or intent, required for genocide, war crimes and crimes against humanity to be committed. The Elements of Crimes elaborate the definitions of the crimes in the Statute. Throughout the drafting process, great care was taken that the intent of the Statute not be changed. The Elements of Crimes are not in themselves binding, but have a "persuasive character".
The Rules of Procedure and Evidence set out general principles and clear descriptions of specific procedures underpinning and supplementing the provisions of the Statute. All procedures referred to in the Statute are thoroughly described. Specific guidelines are given for the various participants, describing how they are to carry out particular actions referred to in the Statute, the steps they must take, the sequence, the circumstances -- all procedural details. Both the Elements of Crimes and the Rules of Procedure and Evidence are subordinate to the provisions of the Statute.
Where is the Court located?
The Court has its seat in The Hague, the Netherlands. With the entry into force of the Rome Statute, the host country has provided temporary premises for the Court on the outskirts of The Hague. The host country has selected an appropriate site and initiated an international architectural competition for the design of the Court building. The new building, which will comprise 30,000 square metres, is expected to be completed by 2007.
Who is going to pay for the Court?
The International Criminal Court is a separate entity from the United Nations. According to the Statute, its expenses shall be funded by assessed contributions made by States Parties and by voluntary contributions from Governments, international organizations, individuals, corporations and other entities. In special circumstances funds could be provided by the UN, subject to the approval of the General Assembly, when they relate to expenses incurred due to "situations" referred to the Court by the Security Council. The contributions of the States Parties will be assessed based on the scale adopted by the United Nations for its regular budget, but any States that wish to do so may voluntarily contribute additional funds. The Netherlands, the host country for the Court, has expressed its willingness to contribute funds for the first meetings of the Assembly of States Parties.
Published by the United Nations Department of Public Information - December 2002
Visit the United Nations homepage