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| Author: | Claire Calzonetti |
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October 6, 2005
The concept of an international court was first discussed in the aftermath of World War II. However, it wasn’t until the 1990s that the first ad hoc international criminal tribunals were set up to deal with war crimes in Rwanda and the former Yugoslavia. The ad hoc tribunals were limited in their efficiency and deterrent capability, which spurred the need for a permanent court to deal with the world’s most serious crimes. A statute to establish the International Criminal Court (ICC) for creating such a body was approved at a United Nations (UN) conference in Rome on July 17, 1998. After receiving more than sixty ratifications by April 2002, the treaty became legal on July 1, 2002. On March 11, 2003, the ICC opened with Canadian Philippe Kirsch as judge-president, and Elizabeth Odio Benito of Costa Rica and Akua Kuenyenia of Ghana as vice presidents.
The ICC seeks to try individuals who are perpetrators of the world’s most serious crimes such as genocide, war crimes, crimes against humanity, and crimes of aggression. Crimes against humanity include those crimes that systematically exterminate, enslave, torture, rape, and persecute victims based on political, gender, religious, ethnic, national, or cultural differences. War crimes are violations of the international Geneva Convention to protect prisoners of war, and other laws that apply to international armed conflict. For now, the treaty has also listed a crime of “aggression,” but has yet to define what constitutes this crime. In the future, this stipulation may be amended to add other crimes.
At the time of statute negotiations, the United States opposed the court, fearing their soldiers could be subject to prosecutions that were either trivial or politically motivated. In its defense, the United States insisted on immunity for all its military personnel operating in UN peacekeeping missions, particularly in East Timor and Bosnia-Herzegovina. It was denied immunity in East Timor, but after vetoing a UN-extended peacekeeping mission Bosnia-Herzegovina, the Washington was granted a one-year exemption from prosecution to be renewed every year. The United States also formed bilateral agreements with other nations obliging them not to hand over U.S. personnel to the ICC and passed the American Service Member’s Protection Act authorizing the president to use all means necessary to free U.S. personnel detained by the ICC.
Former President Bill Clinton did eventually sign the treaty at the end of his second term, but U.S. support for the treaty was quickly withdrawn when President George W. Bush un-signed the treaty in 2002.
In total, seven countries voted against the statute: China, Iraq, Israel, Libya, Qatar, the United States, and Yemen. China objected on grounds that “the statute is an attempt to interfere with the domestic affairs of a sovereign nation.” Other non-members include India, Iran, Japan, North Korea, Pakistan, Saudi Arabia, Sudan, Syria, and Turkey. While most Western European and South American countries are signatories, there is only one Arab nation member—Jordan—and five Asian members—Afghanistan, Cambodia, Mongolia, South Korea, and Tajikistan.
The Office of the Prosecutor (OTP) has been referred cases from Uganda, the Central African Republic, and the Democratic Republic of the Congo. In addition, the United Nations Security Council gave its first referral for the Darfur region of Sudan to the OTP in March 2005. In accordance with the Statute of Rome, the OTP has decided to open investigation in Uganda, The Democratic Republic of the Congo, and Darfur, Sudan.
The ICC is based on a principle of complementarity. This means that the ICC can only act when a national court is unable or unwilling to carry out a prosecution itself because the ICC was not created to supplant the authority of the national courts. However, when a state’s legal system collapses or when a government is a perpetrator of heinous crimes, the ICC can exercise jurisdiction.
The international criminal tribunals in Rwanda and formerYugoslavia can only try individuals who committed crimes against humanity in those territories over a specific period of time. The International Criminal Court, on the other hand, can rule on all crimes committed against humanity regardless of its location so long as they have occurred after July 1, 2002. The role of the International Court of Justice is to rule on arguments that occur between governments. Unlike the International Criminal Court, it does not have the ability to try individuals
The ICC, as an independent body, is funded primarily by its member states. The contributions of each state are determined by the same method used by the UN, which roughly corresponds with a country’s income. Additional funding is provided by voluntary government contributions, international organizations, individuals, corporations, and other entities. The United Nations may provide funding if it is approved by the General Assembly and is related to a “situation” referred to the court by the Security Council.
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