Why International Criminal Court (ICC)?

Posted by under Human Rights Education on 20 June 2006

The Human Rights Correspondence School (HRCS) of the AHRC has issued teaching modules on the International Criminal Court (ICC). It is for human rights activists, students, and anyone interest to know what is the ICC.

The International Criminal Court (ICC) is the first treaty based, permanent court capable of trying individuals accused of the most serious violations of international humanitarian and human rights law, namely genocide, crimes against humanity and war crimes. These individuals may be heads of state, commanders of armed forces or members of parliament; their official capacity does not exempt them from criminal responsibility under ICC provisions. This notion of individual criminal responsibility leads to two new developments. Firstly, rulers can no longer expect to get away with committing gross abuses; there is an international judicial institution able to try them for their crimes. Following from this precept--that the ICC is a judicial, not political body--comes the second development: such trials no longer give form to political expressions, but are instead part of legal standards.

The idea of an international criminal court is an old one. At numerous times throughout history the need has been felt to try criminals, particularly those having committed grave crimes and when national jurisdictions were not capable of holding the perpetrators responsible. Efforts to create a global criminal court can be traced back to the early 19th century; in 1872, Gustav Moynier--one of the founders of the International Committee of the Red Cross--proposed a permanent court in response to the crimes of the Franco-Prussian War. The next serious call for an internationalized justice system came from the drafters of the 1919 Treaty of Versailles, who envisaged an ad hoc international court to try the Kaiser and German war criminals of World War I. Following World War II, the Nuremberg and Tokyo tribunals were set up to try Axis war criminals. Meanwhile, the United Nations General Assembly, following the adoption of the four Geneva Conventions of 1949, invited the International Law Commission (ILC) "to study the desirability and possibility of establishing an international judicial organ for the trials of persons charged with genocide". Although the ILC drafted such a statute in the early 1950s, the Cold War hindered these efforts and the General Assembly effectively abandoned the attempt pending agreement on a definition for the crime of aggression and an international Code of Crimes.

In June 1989, motivated in part by an effort to combat drug trafficking, Trinidad and Tobago resurrected a pre-existing proposal for the establishment of an international criminal court and the General Assembly asked the ILC to resume its work on drafting a statute. The conflicts in Bosnia-Herzegovina and Croatia as well as in Rwanda in the early 1990s--which were responsible for heinous crimes against humanity and genocide--led to the establishment of two ad hoc tribunals to hold individuals accountable for these atrocities. These tribunals further spotlighted the need for a permanent international criminal court.

In 1994, the ILC presented its final draft statute for an ICC to the UN, and recommended that a conference be convened to negotiate a treaty and enact the statute. The Ad Hoc Committee on the Establishment of an International Criminal Court was then set up to discuss substantive issues of the draft statute; it met twice in 1995 before reporting back to the General Assembly. Based on its report, the Preparatory Committee for the Establishment of the ICC was set up by the General Assembly to prepare a consolidated draft text. From 1996-1998, six sessions of this Committee were held, together with the participation of non-governmental organizations (NGOs).

Finally, the Rome Conference was held to "finalize and adopt a convention on the establishment" of an ICC. The conference took place from 15 June-17 July 1998 in Rome, Italy with 160 countries participating. At the end of five weeks of intense negotiations, 120 nations voted in favor of the adoption of the Rome Statute of the ICC, with seven nations voting against the treaty (including the United States, Israel, China, Iraq and Qatar) and 21 states abstaining. The Rome Statute was then open for signatures and ratifications, and was to enter into force upon the 60th ratification. Senegal was the first country to ratify. In the meantime, governments convened regularly through bi- or tri-annual meetings of the Preparatory Commission for the Establishment of the ICC, which was set up by the Rome Conference and altogether held 10 sessions. During these the Commission produced a large volume of work regarding the Court's procedures and standards, including the Elements of Crimes and Rules of Procedure and Evidence for the investigation and prosecution of genocide, crimes against humanity and war crimes. Several Asian countries that had not ratified the Rome Statute at that time still played an important role in the Commission, including Japan and South Korea. After the 66th ratification on 11 April 2002, the Rome Statute entered into force on 1 July 2002, and provisional headquarters for the Court were opened during the same year, at The Hague, Netherlands.

It is important to note here that although the UN played an important role in facilitating its establishment, the ICC is an independent international organization. In accordance with article 2 of the Rome Statute, the ICC's relationship with the UN system is governed by a separate agreement, unlike the International Court of Justice (also known as the World Court), which is the principal judicial organ of the UN and which gives advisory opinions on legal disputes submitted to it by the state parties of the UN. (For more information on the ICJ, please see www.icj-cij.org

Sources and Relevant Links:

Lesson 1: Overview of the International Criminal Court and its unique characteristics

Lesson 2: Outline of the Court's provisions for victims and witnesses

Lesson 3: Importance of the Court for Asia and some challenges

The PDF version of the lesson could be downloaded at: http://www.hrschool.org/modules/46.pdf

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