On July 17, 1998, by a vote of 120 to 7 with 21 abstentions, members of the UN General Assembly, meeting in Rome, agreed to establish a permanent International Criminal Court (ICC) to try individuals for the most egregious crimes of international concern. The agreement, known as the “Rome Statute,” will go into effect after 60 nations have ratified it. As we celebrate the second anniversary of the 1998 agreement, 14 nations have ratified the Rome Statute, and 97 more have signed it, indicating their intent to seek ratification within their own national legislatures. Because the Clinton Administration is afraid that U.S. nationals might be judged by a body not under U.S. control, Washington remains one of the few governments opposed to the agreement.
When fully ratified, the ICC will be a permanent body empowered to try individuals accused of crimes falling under three categories: genocide, as defined by the 1948 UN Convention against Genocide; war crimes, as defined by the 1949 Geneva Conventions; and Crimes Against Humanity, including widespread or systematic extermination of civilian populations, enslavement, torture, systematic rape, forced pregnancy, persecution on political, racial, ethnic or religious grounds, and forced disappearances.
The ICC is not based on the principle of universal jurisdiction, but on the member states’ automatic acceptance of the jurisdiction of the Court if crimes have allegedly occurred in their territory or been committed by their nationals. The practical result is that as more states become members of the Court the situation will become similar to universal jurisdiction, since the possibility that accused criminals can find safe havens will be reduced. Even this limited jurisdiction has caused U.S. mistrust, since the Court could try nationals of non-state parties for crimes committed in the territories of state parties.
The cornerstone of the Rome Statute is the principle of “complementarity.” This principle means that national courts will retain the primary opportunity to try individuals accused of genocide, crimes against humanity and war crimes. The ICC will be able to exercise its jurisdiction only if those national courts cannot or will not act. Thus, national criminal jurisdiction—one of the principal elements of sovereignty—will not be easily surrendered to an international body.
While it is relatively easy to determine the inability of national courts to try criminal conduct, it is not always easy to define an unwillingness to act. But if a national court system appears unwilling to try its own citizens because of political collusion or intimidation, the ICC will be able to assume jurisdiction in well-defined situations. Cases can be referred to the ICC by member governments or by the UN Security Council. The ICC Prosecutor will also be able to independently initiate investigation into a crime. This means that victims themselves, as well as nongovernmental and intergovernmental bodies, will be able to approach the Court to present possible cases.
The Statute also gives the Security Council the power to defer an investigation that concerns a matter on its agenda for renewable periods of up to 12 months. While strong supporters of the ICC consider this regrettable, it is important to note that a majority vote of the Council, including every one of its permanent members, is needed to defer the proceedings. If a single permanent member votes against deferral, the investigation or the prosecution must continue. The absence of an automatic Security Council veto is another reason for U.S. opposition to the Statute.
The Statute has a non-retroactivity clause meant to dispel fears that the Court might try to prosecute political crimes committed before member states were party to the agreement. This clause is meant to enable governments to ratify the Statute without the fear of limitless past offenses being taken to the Court—a possibility that concerns almost every country in the world.
As the Pinochet case demonstrated, it is increasingly in the interest of governments to demonstrate that their national systems have not only the material ability to act, but also the political independence to do so. The instances in which a government can be expected to ask the international community to intervene will be extremely rare. It is therefore reasonable to expect that many countries that become parties to the agreement will have to enact comprehensive legislative reforms in order to strengthen their national judicial systems.
It is now clear that despite Washington’s opposition, the Rome Statute has overwhelming support from the world’s governments. It is generally expected that by the end of this year at least 25 countries will have ratified the Statute and that by late 2002 the first Assembly of State Parties will have met in The Hague—the Court’s eventual home—to begin selecting judges.
ABOUT THE AUTHOR
Eduardo González-Cueva is the Global South campaign coordinator at the NGO Coalition for an International Criminal Court. For documentary information visit www.iccnow.org.
