Rome Statute of the International Criminal Court

International Criminal Court (ICC) is an independent judicial institution with the power to try and punish individuals for the most serious crimes of international concern: genocide, crimes against humanity, crimes of aggression, and war crimes. The court was first approved in 1998 by a treaty known as the Rome Statute, and it officially came into being on July 1, 2002, after 60 countries ratified the treaty. The court has its headquarters in The Hague, The Netherlands.

Unlike previous war crimes courts with jurisdiction limited to specific conflicts, the ICC is a permanent institution whose jurisdiction extends globally. Even individuals from countries that are not parties to the Rome Statute may be subject to the court’s jurisdiction under certain circumstances. However, the ICC is complementary to national criminal procedures, meaning that it may not exercise jurisdiction if a nation is adequately prosecuting accused criminals.

The ICC differs from the United Nations International Court of Justice in important respects. First, the ICC is not an organ of the United Nations (UN) although it maintains a relationship with the UN. Second, the ICC handles cases involving individual criminal responsibility, whereas the International Court of Justice mainly decides legal disputes between nations. Unlike the Nuremberg and Tokyo tribunals established after World War II, and the more recent ad-hoc international tribunals for Rwanda and the Former Yugoslavia, which have specific mandates and scope of jurisdiction, the ICC is a permanent body based in The Hague, Netherlands, with jurisdiction over criminals worldwide. Though it has relationship with the United Nations as defined in the Relationship Agreement between the UN and the court, it is not an arm of the UN.

It is also largely independent of the UN Security Council. In contrast to the ad-hoc international tribunals for the former Yugoslavia and Rwanda that the Security Council created, the ICC derives its mandate, jurisdiction and authority from the Rome Statute that the 120 states adopted in 1998 and later was signed by 139 states. The jurisdiction of the ICC is [2] limited to the most serious crimes of concern to the international community as a whole: genocide, crimes against humanity, war crimes, aggression [3] only with respect to crimes committed after the entry into force of the statute and has no retroactive effect: crimes committed after July 1, 2002, the date the Rome Statute came into force. If crime or complaint was referred by a state or initiated by the prosecutor, the ICC may exercise its jurisdiction if the states are parties to the statute or have accepted the court’s jurisdiction; (i) a state on the territory which the alleged crime occurred; (ii) a state of which the person accused of the crime is a national. States that did not sign or ratify the statute may accept the jurisdiction of the court and cooperate in the implementation of the statute.

The Rome Statute does not recognize immunities for crimes within the court’s jurisdiction, even if those crimes were deemed official acts or committed by a head of state [4] . Therefore, state have the primary responsibility of bringing those responsible to justice, and that it is the duty of every state to exercise criminal jurisdiction over those responsible for international crimes [5] . Therefore, the ICC will only act when the state with responsibility over case, is unwilling or unable to prosecute the crime. Besides complementarily as one aspect of state obligation, there is cooperation as another aspect, such as stated at Article 86 that said states parties agree to cooperate fully with the court in the investigation and prosecution of crimes within the jurisdiction of the court. Such cooperation may entail obtaining documents, locating and seizing assets of the accused, conducting searches and seizures of evidence, locating and protecting witnesses and arresting and surrendering persons accused of crimes in the court. States should also cooperate with the court in enforcing sentences by making detention facilities available to convicted persons.

The other salient features of the ICC are:

  • Crimes in internal armed conflict as war crimes
  • Gender-based crimes as crimes against humanity and war crimes
  • Agreement on Privileges and Immunities of the Court (APIC)
  • Victims’ Rights and Protection

UNITED STATES’ POSITION

The United States of America was one of only 7 nations (joining China, Iraq, Libya, Yemen, Qatar and Israel) to vote against the Rome Statute of the International Criminal Court in 1998. Its target is to seek immunity for all US citizens from any prosecution by any international body, primarily the International Criminal Court, by:

  • “Un-signing”[6]
  • Bilateral Immunity Agreement
  • UN Security Council Resolutions (Resolutions 1422 and 1487)
  • American Service members’ Protection Act (ASPA)

The Bush administration’s hostility to the ICC has increased dramatically in 2002. The crux of the U.S. concern relates to the prospect that the ICC may exercise its jurisdiction to conduct politically motivated investigations and prosecutions of U.S. military and political officials and personnel. The U.S. opposition to the ICC is in stark contrast to the strong support for the court by most of America’s closest allies.

At that time, the Ambassador-at-large for War Crimes Issues, Pierre-Richard Prosper, stated that the administration was “not going to war” with the Court. This has proved false; the renunciation of the treaty has paved the way for a comprehensive U.S. campaign to undermine the ICC; first, the Bush administration negotiated a Security Council resolution to provide an exemption for U.S. personnel operating in U.N. peacekeeping operations. The administration failed in May to obtain an exemption for peacekeepers in East Timor. In June, the Bush administration vetoed an extension of the UN peacekeeping mission for Bosnia-Herzegovina unless the Security Council granted a complete exemption. Ultimately, the U.S. failed in its bid for an iron-clad exemption, although the Security Council approved a limited, one year exemption for U.S. personnel participating in UN peacekeeping missions or UN authorized operations. The Security Council has expressed its intention to renew this exemption on 30th June 2003.

Second, the Bush administration is requesting states around the world to approve bilateral agreements requiring them not to surrender American nationals to the ICC. The goal of these agreements (“impunity agreements” or so-called “Article 98 agreements”) is to exempt U.S. nationals from ICC jurisdiction. They also lead to a two-tiered rule of law for the most serious international crimes: one that applies to U.S. nationals; another that applies to the rest of the world’s citizens.

Thirdly, the U.S Congress has assisted the Bush administration’s effort to obtain bilateral impunity agreements. The Congress passed the American Service members’ Protection Act (ASPA), which was signed into law by President Bush on 3 August. The major anti-ICC provisions in ASPA are:

  • A prohibition on U.S. cooperation with the ICC;
  • An “invasion of the Hague” provision: authorizing the President to “use all means necessary and appropriate” to free U.S. personnel (and certain allied personnel) detained or imprisoned by the ICC;
  • Punishment for states that join the ICC treaty: refusing military aid to States’ Parties to the treaty (except major U.S. allies);
  • A prohibition on U.S. participation in peacekeeping activities unless immunity from the ICC is guaranteed for U.S. personnel.

However, all of these provisions are off-set by waiver provisions that allow the president to override the effects of ASPA when “in the national interest”. The waiver provisions effectively render ASPA meaningless.

[1].     References: Balais-Serano, Evelyn. “Understanding intergovernmental decision making processes (ASEA N and UN): The FORUM-ASIA Experience.” Lecturing on SEACA IPD Advocacy Strategy and Techniques Development Internship Program 2005 Workshop at the Richmonde Hotel, Philippines on March 16, 2005; Microsoft Encarta Encyclopedia Standard 2005

[2].  Part 2 Jurisdiction, Admissibility and Applicable Law, Article 5: Crimes within the Jurisdiction of the Court, Rome Statute

[3].  Aggression cannot be the subject of any prosecution, however, until the Assembly of States Parties, a body made up of one representative from each nation that has accepted the statute, amends the statute to define the crime and set out the conditions for prosecution. The issue of aggression is politically charged and participants at the Rome Conference could not agree on its definition. Proposed definitions centered on the idea of an armed invasion or attack by one nation against another with the intent to violate its territorial integrity or political independence. Microsoft ® Encarta ® 2006.

[4].  Article 27 Irrelevance of Official Capacity verse (2): Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such person.

[5].  Article 1: An International Criminal Court (‘the Court”) is hereby established. It shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in the Statute, and shall be complementary to national criminal jurisdictions. The jurisdiction and functioning of the Court shall be governed by the provisions of this Statute

[6].  President Bill Clinton ultimately signed it, although he did not submit it to the United States Senate for approval. On 6th May 2002 President George W. Bush, citing the same objections raised by U.S. officials during the Rome conference, informed the UN that the United States would not ratify the agreement, terminating the effect of Clinton’s signature. Microsoft ® Encarta ® 2006.

Further References:

http://www.iccnow.org/

http://www.amicc.org/usicc/biacampaign/ on Bilateral Immunity Agreement

Bilateral Immunity Agreement

A Handbook for Implementing the Rome Statute