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Unformatted text preview: Case 258 Establishing an International Criminal Court: The Emergence of a New Global Authority? Eric K. Leonard University of Delaware Copyright 2002 by the Institute for the Study of Diplomacy (ISD). Reprint with ISD permission only. ISBN: 1-56927-258-1 PEW CASE STUDIES IN INTERNATIONAL AFFAIRS Institute for the Study of Diplomacy School of Foreign Service Georgetown University 1316 36th Street, N.W. Washington, D.C. 20007 Tel.: Fax: Website: E-mail: (877) 703-4660 (202) 965-5811 http://www.guisd.org raynerp1@georgetown.edu Case 258 ESTABLISHING AN INTERNATIONAL CRIMINAL COURT: THE EMERGENCE OF A NEW GLOBAL AUTHORITY? Eric K. Leonard University of Delaware COPYRIGHTED MATERIAL Do Not Duplicate — This is Copyrighted Material for Classroom Use. It is available only through the Institute for the Study of Diplomacy. 202-965-5735 x3002 (tel) 202-965-5811 (fax) INTRODUCTION In 1994, over a one hundred-day period, the violent and systematic slaughter of close to one million people occurred in the African country of Rwanda. This mass killing was one of the worst acts of genocide in history. In the aftermath of the slaughter, the United Nations Security Council established an ad hoc tribunal to prosecute the guilty parties. The UN Security Council mandated that the International Criminal Tribunal for Rwanda (ICTR) prosecute those individuals guilty of genocide, crimes against humanity, and war crimes. Between 1991 and 1999, the former Yugoslavia also experienced a humanitarian crisis. During this period, multiple accounts of ethnic and civil war rocked the republics of the former Yugoslavia. The result of this decade long conflict was thousands of people dead and millions of people displaced from their homes. Through a process known as “ethnic cleansing,” Serbian president Slobodan Milosevic attempted to systematically rid Yugoslavia of all non-Serbian citizens. He attempted to achieve this goal via genocide, mass rape, and forced expulsion. In response to this conflict, the international community established the International Criminal Tribu- Copyright 2002 by Institute for the Study of Diplomacy. ISBN: 1-56927-258-1 Publications, Institute for the Study of Diplomacy, School of Foreign Service, Georgetown University, Washington, D.C. 20057–1025 http://data.georgetown.edu/sfs/programs/isd/ nal for the former Yugoslavia (ICTY), another ad hoc tribunal. At the time of this writing, Slobodan Milosevic is in the custody of the court and awaiting his trial. A primary question that we, as students of world politics, must ask ourselves is whether the form of international justice employed in the aforementioned cases (ad hoc tribunals) is sufficient. In other words, does it adequately address the problem of continual violations of humanitarian law? Does it address this problem in a timely manner? Does it address all cases of humanitarian law violations? Along with these questions concerning international justice, we must also ask ourselves what impact humanitarian law has on one of the foundational premises of world politics: state sovereignty. In particular, if ratification of the statute for an International Criminal Court is successful, what impact will this court have on issues of state sovereignty? A large portion of the international community believes that the current ad hoc system of global justice does not adequately address any of the aforementioned questions. According to these actors, if the international community is ever going to achieve a global system of justice, then a permanent International Criminal Court (ICC) must be established. In July 1998, the international community took a major step toward achieving that goal and voted to establish such a court, despite strong opposition from the United States. The primary reason the United States opposes this court is its belief that it will undermine state sovereignty. 1 2 Eric K. Leonard PART A: HISTORICAL BACKGROUND The post-cold war era has not been a time of peace and tranquility. As depicted above, conflict, war crimes, acts of genocide, and crimes against humanity have been a mainstay of world politics in the past decade. In order to combat this rising trend, on 17 July 1998, 120 nation-states voted in favor of the Rome Statute for the establishment of a permanent International Criminal Court (ICC). Only 7 nationstates (China, Iran, Iraq, Israel, Libya, Sudan, and the United States) rejected the statute. Unfortunately, such support does not mean that the road to establishing an ICC was, or will be, an easy one. The establishment of a permanent ICC traveled a long, hard path, but it now appears as if the overwhelming approval of the Rome Statute brings the global community one step closer to an institutionalized form of humanitarian law and the achievement of global justice. Path to Rome At the outset of this case, it is important to note that the fight to construct an International Criminal Court is not solely a product of the 1990s, although scholars often consider its current form the result of the changing contemporary international environment. The international community first discussed the idea of a permanent International Criminal Court after World War I. It was at this time that the international community unsuccessfully attempted to establish an international tribunal on war crimes so that the allied powers could try Kaiser Wilhelm II. After World War II, the victorious governments established the Nuremberg and Tokyo war crime tribunals, thus setting the precedent for an International Criminal Court. However, it was in 1948 that the international community took its first real step towards the establishment of a permanent ICC. It was at this juncture in time that many members of the United Nations General Assembly called specifically for the establishment of an International Criminal Court. The UN General Assembly instructed the United Nations International Law Commission (ILC) to draft a statute dealing with this subject matter and to present it to the UN delegates. In both 1953 and 1954, the ILC presented a draft text for the establishment of an ICC to the General Assembly. Both times the General Assembly rejected the text with little or no enthusiasm. At that time, the official reason for abandoning the effort to establish an ICC was that the international community could not agree on a definition of “aggression.” Case 258 As a result, the society of states simply forgot about the call for a permanent ICC for close to forty years. In 1989 Trinidad and Tobago resurrected the idea of forming an ICC. Initially, Trinidad and Tobago were hoping to form a court that would prosecute international drug traffickers. It was only a short time after this request that the General Assembly instructed the ILC to prepare a draft statute on an ICC and to extend its jurisdiction beyond the crime of drug trafficking. In 1994 the ILC submitted its final draft statute and the General Assembly recommended that an international conference convene to try to negotiate a treaty that would enact the ICC. Rome and Beyond Between 15 June and 17 July 1998, the Rome Conference for the Establishment of an International Criminal Court convened. At the outset of the conference, it was obvious that the positions of many delegates were already firmly entrenched. Therefore, if the conference leadership were going to ascertain enough support for the ICC, there would need to be a tremendous amount of work, negotiation, and cooperation among the delegates. The conference leadership, or the bureau, began the negotiation procedures with a distinct plan on how the conference should proceed, what issues the delegates would discuss, and which committees should discuss them (the Courmayeur Plan).1 Unfortunately, with the commencement of the Rome Conference, it rapidly became apparent that the Courmayeur Plan would not work. The primary problem was that a large portion of the delegates attending the Rome Conference had not participated in the PrepCom, or preconference, meetings and therefore lacked a foundational understanding of the draft statute.2 As a result, the Committee of the Whole and its working group found themselves in the position of constantly having to rehash issues that the PrepCom had already debated. It was obvious that the conference leadership had to formulate and initiate a new tactical plan, otherwise the entire Rome Conference would grind to a halt and end in failure. In order to avoid such a situation, the delegates agreed to participate in several “informal working groups.” Many of these groups were then broken down into even smaller “informal-informal working groups.” According to participants at the conference, a tremendous amount of work on the final draft occurred in these smaller informal groups. A typical day for a delegate at the Rome Conference consisted of official working group meetings, supple- Case 258 Establishing an International Criminal Court mented by “informals” in which, as one observer put it, “the real negotiations took place.”3 The use of “informals” supplementing the formal meetings worked. Progress occurred on many of the most contentious issues (such as jurisdiction, trigger mechanisms, and the role of the UN Security Council) and a final draft began to take shape. On the last day of the conference, Chairman Philippe Kirsch decided that the Conference Bureau’s text be presented to the Committee of the Whole for possible adoption. The Committee of the Whole convened on Friday, 17 July 1998 to discuss adoption of the final draft statute. At this time, both India and the United States attempted to introduce amendments to the final draft. Fearing a stalemate on these final amendments, Norway’s delegate introduced a “no action” motion for both amendments, which was a motion to table the amendments and avoid a total collapse of the conference. The result of the no action motions was an affirmative vote of 114 votes in favor, 16 against, and 20 abstentions on the introduction of India’s amendment, and 113 in favor, 17 against, and 25 abstentions for the introduction of the United States’ amendment. Cherif Bassiouni described the ensuing scene as follows: After the second vote, which was final [on the U.S. proposal], the delegates burst into a sponta- 3 neous standing ovation which turned into rhythmic applause that lasted close to 10 minutes, while some delegates embraced one another, others had tears in their eyes. It was one of the most extraordinary emotional scenes ever to take place at a diplomatic conference. The prevailing feeling was that the long historic journey that started after World War I had finally reached its destination. It was truly a historic moment of great significance for all who had worked so hard to bring about the momentous results.4 The final plenary session convened at around nine o’clock that evening. After the United States called for one more unrecorded vote on the statute, to ascertain one last measurement of who would support them in their opposition to the Rome Statute, the official vote occurred. The final vote was 120 in favor, 7 against, and 21 abstentions. The Rome Conference had achieved its ultimate goal and on the following morning the Rome Statute of the International Criminal Court was open for signatures. The long journey toward the establishment of an International Criminal Court had reached a critical moment. Supporters of the ICC mark the events of 15 June through 17 July 1998 as a momentous occasion not only for advocates of international humanitarian law, but for the principles of international law and international cooperation in general. 4 Eric K. Leonard PART B: ACTORS AND NEGOTIATING POSITIONS In attempting to understand how this regime formation process progressed, it is crucial that we first understand the negotiation position taken by all of the actors attending the Rome Conference. It is obvious that prior to the conference some states had already defined their positions on the ICC and its many articles. One group of states, entitled the “Like-Minded Group,” favored the establishment of a strong and independent court. This group, consisting of mostly Western European nation-states, was probably the most outspoken collection of states concerning the need for an International Criminal Court, and, as a result, they emerged as leaders during the Rome Conference. Opposing this group was the United States along with a collection of mainly nondemocratic states. This group felt that the ICC, as embodied in the draft text, was a flawed institution. Finally, the nongovernmental organization (NGO) community also played a critical role in the negotiation process by assisting the Like-Minded Group in their endeavor. Let us begin this analysis with the advocates of the ICC and why they feel the court is such a necessary institution for the global community. Like-Minded Group The self-named “Like-Minded” countries were the strongest advocates for an independent and powerful ICC. In general, this group of states shared one common interest: the rapid creation of a permanent International Criminal Court. These states realized that the opportunity to establish such an institution had already slipped away once (50 years ago), and they believed that if the international community did not act fast, the current movement might also fall short. In order to achieve their goal, the LikeMinded states made sure that they played a crucial role in not only the Rome Conference, but also the PrepCom meetings that led up to the conference. Throughout the negotiation process, the LikeMinded Group fought to establish a strong and independent ICC by often leading the PrepCom meetings and always maintaining a high level of visibility. Their efforts did not go unnoticed. Other states began to see the importance of this issue and slowly began to gravitate to the Like-Minded Group. At the time of the ILC Draft Statute for an International Criminal Court, 1994, the Like-Minded Group consisted of only a dozen or so countries. As the process progressed and other states became aware of Case 258 the Like-Minded Group’s intentions, the number of adherents to their position began to swell. By the beginning of the Rome Conference, the group was composed of 42 states. By the end of the conference, the group totaled more than 60 states including Britain, Canada, France, Germany, Italy, the Netherlands, Spain, and many others. These growing membership numbers serve as proof that the Like-Minded Group’s guiding principles resonated true with a large portion of the global community. In 1997 the Like-Minded Group explicitly stated their goals. At the December PrepCom meeting, the Like-Minded Group centered their future goals on the following six guiding principles.5 First, they desired an ICC that would be independent of the United Nations Security Council. They believed that this would assist in the depoliticizing of this institution and prevent the major powers of the world from vetoing prosecutions that were not in their best interest. Second, in a further attempt at depoliticization, the Like-Minded Group also advocated the idea of an independent prosecutor. This principle would give the prosecutor the power to initiate an investigation proprio motu (on their own). It would also allow the court to retain a greater sense of independence from both member states and the Security Council and provide the court with greater legal legitimacy. Third, the Like-Minded Group advocated the extension of the inherent jurisdiction of the court to cover all core crimes (genocide, crimes against humanity, war crimes, and the crime of aggression). This principle would achieve two major functions. First, it would improve the traditional twotrack approach to jurisdiction in international courts or tribunals. Historically, if a state is party to an international court or tribunal, this did not necessarily equate into inherent acceptance of the court’s jurisdiction.6 Membership and jurisdiction are two separate consensual issues, thus making acceptance of the court’s jurisdiction the second step. The ICC alters this two-step process. In the case of the ICC, immediately upon ratification, the court ascertains automatic jurisdiction within the party state. There is no need for two separate forms of consent.7 Second, it allows for greater independence of the court. The ability of the court to pursue prosecutions increases, regardless of state consent, by not allowing any opt-in or opt-out clauses. Fourth, the Like-Minded Group called for the full cooperation of states with the ICC. The necessity of such a proposal is obvious when considering the plethora of tasks that the court will have to undertake. The ICC, if ratified, is still an institution Case 258 Establishing an International Criminal Court composed of nation-states. Therefore, the ICC relies heavily on the assistance of these states for the functioning and enforcement of the court and its decisions. According to the Rome Statute, the ICC will be entirely reliant on member states for the discharge of its functions. Without the full cooperation of member states, the court would not be able to function in an effective and/or efficient manner. The Like-Minded Group’s fifth principle advocated the idea of the ICC as final decision maker on all issues of admissibility. This objective is essential to the Like-Minded states because of their desire to establish an independent court. As they perceive it, one way to insure the fair and independent functioning of the court is to place the burden of admissibility, which is the introduction and acceptance of a case before the court, solely with the elected judges. This will alleviate the politicization of the court by state members and assist in the pursuit of an objective decision-making process that is essential in the pursuit of justice. The final principle espoused by the Like-Minded Group is a commitment to a successful diplomatic conference in Rome. This group of states realized that more than a half-century worth of work was dependent on a five-week conference. They were not under the impression that this step in the formation process would be an easy one; therefore, they wanted to explicitly state their commitment to a successful outcome at the conference. The approval of the Rome Statute on 17 July 1998 is, in large part, the result of the Like-Minded Group’s dedication to this project. Moreover, although some of their principles exist in the final statute, while others do not, it is clear that this group of states was crucial to the negotiating process. However, the Like-Minded states were not the only state actors involved. Two other groups of states also played a role in the negotiation process. Nonaligned Movement The nonaligned movement was another group of states that took shape during the formation process. This group of states played a role in the early stages of negotiation, but their influence dissipated as the process progressed. The nonaligned movement was in favor of an ICC, but only if certain conditions were included. In general, these states supported the formation of the ICC if it included the following principles: 1) the need to include nuclear weapons in the list of prohibited weapons; 2) the necessity to eliminate any control of the court by the Security Council.8 5 This group of states consisted mainly of nonWestern states that, in the instance of the ICC, wished to initiate a countermovement to the Western, Security Council powers.9 India served, primarily, as the leadership of this group, with a group of Persian Gulf States forming the secondary leadership role. Nevertheless, the staying power of this group was not long. Two of the primary deficiencies of this group were the lack of total cohesiveness and weak leadership. These flaws eventually led the members of the nonaligned movement to break away and gravitate either to a more regionally based grouping or towards the Like-Minded states. Thus, their impact on the negotiations was minimal, although in many ways they did bolster the LikeMinded Group’s numbers, giving them an edge over the permanent Security Council states. The P-5, or the United States and Its “Allies” In direct opposition to the Like-Minded Group’s position was the United States, along with a loosely bound group of permanent Security Council members and nondemocratic states.10 The United States’ opposition to the court centered on the concept of national sovereignty. The United States was concerned that if the Like-Minded states were able to form an ICC with an independent prosecutor who had the power to initiate investigations on his/her own, then the court could bring U.S. soldiers and policymakers to trial outside of the U.S. court system. It was this fear of an ICC prosecutor “running wild” and impinging on the national sovereignty of not only the United States, but also all sovereign states, that fueled U.S. opposition. United States officials stated that they would oppose the formation of an ICC if it included any of the following: 1) any form of jurisdiction over nonparty states; 2) no “opt-out” clause concerning jurisdiction of core crimes; 3) amendment procedures that do not allow states to avoid jurisdiction; 4) an independent or proprio motu prosecutor; 5) the inclusion of the crime of aggression as a core crime; 6) the inclusion of crimes of terrorism and drug crimes; 7) a “no reservation” clause.11 It is important to note that the U.S. position on the Rome Statute does not mean that the United States opposed the idea of an International Criminal Court. According to U.S. delegates, an acceptable ICC must first respect the concept of national sovereignty and second, it must not be vulnerable to usage as a political tool. In other words, the United States wanted to make sure that the ICC would remain under the control of the Security Council 6 Eric K. Leonard instead of an independent prosecutor, whom they saw as a potential political tool. As David Scheffer, U.S. ambassador at-large for war crimes issues and the U.S. delegate representative to the Rome Conference, stated: “The United States has had and will continue to have a compelling interest in the establishment of a permanent international criminal court. . . . Since 1995, the question for the Clinton administration has never been whether there should be an international criminal court, but rather what kind of court would be in order to operate efficiently, effectively and appropriately.”12 The United States was opposed to the final draft statute because as they saw it, the ICC circumvented national sovereignty and the principle of nonintervention. Scheffer stated quite bluntly that the United States would not expose its military forces, its leadership, or its citizens to a court that the United States does not recognize. The only way that the United States would recognize an International Criminal Court is if the Security Council controlled it. The implementation of this type of trigger mechanism would give the United States veto power over the court’s jurisdiction and, as Scheffer saw it, protect U.S. soldiers and other U.S. citizens from unwarranted prosecution.13 As the conference progressed, it became obvious that the United States and the Like-Minded Group were going to clash over many of the issues in the draft statute. In the end, the United States refused to approve the Rome Statute because it failed to adequately address many of the U.S. delegates’ concerns. Despite U.S. opposition, the participants overwhelmingly approved the Rome Statute, due in no small part to the growing number of nonaligned states that joined the Like-Minded Group. However, not all of the credit for this momentum towards the approval of the Rome Statute can go to the state delegates alone. The nongovernmental organizations that attended exerted a large degree of influence. The CICC The Nongovernmental Organization (NGO) Coalition for an International Criminal Court (CICC) was a major actor in the formation of the Rome Statute. The coalition had over eight hundred nongovernmental organizations working for their position and this generally assisted the Like-Minded states and their cause. The NGO Coalition was strongly in favor of an independent court with universal jurisdiction. NGOs such as Amnesty International, Human Rights Watch, Lawyers Committee for Human Rights, and the International League for Human Rights, provided Case 258 vital information and analysis to the delegates through informal meetings and aggressive campaigning tactics. In short, these NGOs provided the delegates with an expert’s analysis of this subject matter, and as a result, became a crucial component to the final draft statute.14 The NGO Coalition’s role in the establishment of the ICC was, and continues to be, significant. In many ways, the CICC empowered the Like-Minded states to resist U.S. pressure for a weaker court. Abram Chayes and Anne-Marie Slaughter stated the significance of the NGO community on the ICC negotiations most succinctly when they concluded that, “Without the NGO community, the ICC treaty might not have been concluded.”15 Cherif Bassiouni reiterated this point when he stated “Non-governmental organizations, and particularly the ‘NGO Coalition for an ICC’ played an important and useful part in the process.”16 It is clear that the role of NGOs in the negotiation process was significant. The question that we must now address is, What exactly was the role of the NGO community and how crucial was their presence to the formation of the Rome Statute? One can view the NGO presence, both before and during the Rome Conference, as an example of the changing nature of world politics and international treaty negotiations. Recently, NGOs have begun to take a much more influential role in the treaty formation process. Former UN Secretary General Boutros Boutros-Ghali recognized this fact. In 1996, in a statement concerning the interaction between NGOs and the United Nations, Boutros-Ghali stated that: Until recently, the notion that the chief executive of the United Nations would have taken this issue seriously might have caused astonishment. The United Nations was considered to be a forum for sovereign states alone. Within the space of a few short years, however, this attitude has changed. Nongovernmental organizations are now considered full participants in international life.17 This rise to prominence has affected many issue areas and many treaty negotiations. The importance of NGO input has surfaced during the drafting of the Land Mine Convention, the Antarctic Treaty Consultative Meeting, the Framework Convention on Climate Change, and numerous other treaty negotiations. The community of states now often invites the NGO community to sit at the negotiating table with the delegates, participate in meetings, and assist in the overall negotiating process. The Case 258 Establishing an International Criminal Court 7 Rome Conference is simply another example of the growing influence of NGOs and the importance of their presence during the treaty negotiation process. The influence of the NGO community on the ICC formation process took root on 25 February 1995. It was on this date that a group of NGOs, who were monitoring the UN debate on the ILC’s Draft Statute for an International Criminal Court, decided to form the NGO Coalition for an International Criminal Court (CICC). The primary goal of the CICC was to “advocate the establishment of an effective and just international criminal court.”18 At this time, the group consisted of two dozen or so NGOs. By the time the Rome Conference convened, the CICC included over eight hundred organizations from every corner of the globe.19 The sheer magnitude of this coalition made it impossible for the international community of states to ignore them, and throughout the ICC negotiation process the presence and influence of this group was undeniable. The official CICC statement is as follows: very similar to that of the Like-Minded Group. As a result, an alliance developed between these two groups in an attempt to further their common cause. However, the roles that these two groups played were very different. The Like-Minded Group quite literally authored the statute. In Rome, their vote counted and in the postconference period their domestic legislatures must ratify the statute. The NGO community, due to their lack of formal sovereign statehood, did not have a vote nor would they have a seat amongst the party states upon ratification. Thus, the role of the NGO community had to take on a different form, a form that was, in many ways, a complement to the role of nation-states. Throughout the negotiation process, the CICC engaged in numerous activities. These included but were not exclusive to The main purpose of the NGO Coalition for an International Criminal Court is to advocate for the creation of an effective, just and independent International Criminal Court. The Coalition brings together a broad-based network of over 1,000 NGOs, international law experts and other civil society groups. The multi-track approach of the Coalition involves: promoting education and awareness of the ICC and the Rome Statute at the national, regional and global level; supporting the successful completion of the mandate of the Preparatory Commission and facilitating NGO involvement in the process; promoting the universal acceptance and ratification of the Rome Statute, including the adoption of comprehensive national implementing legislation following ratification; and expanding and strengthening the Coalition’s global network.20 • Maintaining a World Wide Web site and email lists to facilitate the exchange of NGO and expert documentation and information concerning the ICC negotiations and the ad hoc tribunals and to foster discussion and debate about substantive issues The CICC is clearly a strong advocate for the formation of a strong, independent, and fair court that has the ability to pursue a form of universal justice. They sought to achieve this goal through the construction of a statute that would embody the ideas of universal jurisdiction, an independent prosecutor, independence from the UN Security Council, complementarity, jurisdiction over internal conflicts or civil wars, state-party cooperation, and respect of the rights of the accused. As one can see, this list is • Convening sectoral caucuses (Women’s, Children’s, Faith, Peace, and Victims’), national and regional networks, and issue working groups • Facilitating meetings between the coalition and representatives of governments, UN officials, and others involved in the ICC negotiations • Promoting education and awareness of the ICC negotiations at relevant public and professional conferences–including UN conferences, committees, commissions, and preparatory meetings • Producing newsletters, bulletins, media advisories, reviews, and papers on all aspects of efforts to establish the ICC21 In general, the CICC acted as a consultant to the conference participants. They, acting as experts within this issue-area, assisted in the accruing of knowledge by state delegates and in the dissemination of this knowledge to the larger global community. The information that they provided was not simply objective data, but the interpretation that the CICC wished to convey to the participating states. Many states accepted this type of information because of the expertise that the CICC had within this issue-area. 8 Eric K. Leonard PART C: NEGOTIATING THE SPECIFICS OF THE COURT The final Rome Statute consisted of 13 parts and 128 articles. The statute is a very detailed, very thorough document. In order to provide my readers with a basic understanding of how the court will function, this case now discusses five of the major, and more contentious, aspects of the Rome Statute and the negotiation process that surrounded them. Jurisdiction Part 2 of the Rome Statute discusses the jurisdiction of the court. As stated in Article 5, the International Criminal Court will have jurisdiction over the following four crimes: the crime of genocide, crimes against humanity, war crimes, and the crime of aggression. The court shall only have jurisdiction over these crimes from the time the statute enters into force. Therefore, the ICC is temporally bound to the point of its ratification. No crimes committed before that date are within the court’s jurisdiction. Scholars often refer to the crimes themselves as the “core crimes” of international humanitarian law.22 The definitions of the crime of genocide, crimes against humanity, and war crimes are all predicated on established international law. The crime of aggression is more problematic, but I will return to this later. Article 6 of the Rome Statute defines the crime of genocide. The wording of this definition is taken directly from the 1948 Genocide Convention and reads as follows: For the purpose of this Statute, “genocide” means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.23 Case 258 The delegates attending the Rome Conference unanimously consented to this definition and rapidly incorporated it into the statute. Under this article, not only will the act of genocide be punishable, but also conspiracy to commit genocide, public incitement to commit genocide, attempted genocide, and complicity in genocide. Article 7 discusses the nature of crimes against humanity. The definition of these crimes proved difficult to negotiate. The final statute lays out a definition that is quite broad and goes beyond the previous definitions of crimes against humanity. Both the Nuremberg Charter and the ad hoc tribunals of the 1990s (ICTY and ICTR) contained definitions of such crimes, but the Preparatory Committee determined that the definitions found in these documents were insufficient. The definition employed in the final Rome Statute includes acts of murder, extermination, enslavement, deportation or forcible transfer of a population, imprisonment or severe deprivation of physical liberty, torture, rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, other forms of extreme sexual violence, persecution against any identifiable group or collectivity, enforced disappearance of persons, apartheid, or other inhumane acts of a similar character. The court will consider all of these actions crimes against humanity as long as they are “committed as part of a widespread or systematic attack directed against any civilian population.”24 It is also important to note that the Rome Statute does not require that such acts be committed within the context of an armed conflict. Therefore, according to the Rome Statute’s definition, crimes against humanity can also be committed in times of civil strife or even peace.25 This expansive definition of crimes against humanity allows the ICC to pursue cases that encompass widespread and systematic violence by a government against a domestic civilian population. Article 8 of the Rome Statute discusses war crimes. As with the previous two crimes, established international law guides the Rome Statute’s definition of a war crime. In particular, grave breaches of the 1949 Geneva Convention (including Protocol I, Protocol II, and violations of Article 3 common to the four Geneva Conventions) and the Hague Convention of 1907 form the foundation of this definition.26 The resulting definition of war crimes is extremely inclusive and encompassing. It includes willful killing, torture or inhuman treatment, extensive destruction and appropriation of property, unlawful deportation, taking of hostages, intention- Case 258 Establishing an International Criminal Court ally targeting civilian populations, use of poison weapons or gases, rape, sexual slavery, starvation, among numerous other violations of international law. A major point of discussion at the Rome Conference was whether the definition of war crimes is applicable to internal conflicts. The court was established to have jurisdiction over war crimes when they are “committed as part of a plan or policy or as part of a large-scale commission of such crimes.”27 In paragraph 2 (b), the statute establishes that this crime applies in situations of international armed conflict, but how does this affect internal conflict? The delegates engaged in a tremendous amount of discussion concerning this issue. The result was a negotiated consensus that allowed for the court’s jurisdiction on war crimes to include internal wars,28 but not “situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature.”29 There was also a tremendous amount of discussion on the issue of nuclear weapons.30 The majority of delegates present at the conference supported the inclusion of nuclear weapon use as part of the war crimes definition, but because international law does not explicitly prohibit the threat or use of such weapons, this issue was not included.31 Many participants of the conference also believed that the exclusion of nuclear weapon use would increase support of the entire Rome Statute. Many advocates of the ICC see such a concession as a way to garner support that is more widespread for the ICC among the major world powers; although the official reasoning was that no international legal precedent existed concerning the banning of nuclear weapon use. The last crime within the court’s jurisdiction is the crime of aggression. This particular crime has proved a sticking point for the establishment of an International Criminal Court since the early postWorld War II era. In 1954 the United Nations General Assembly prevented the formation of an ICC because the ILC could not define “aggression.”32 The UN Special Committee finally defined the concept in 1974, but even an explicit definition did not end the controversy. The 1974 definition was rather expansive, but the primary content of the definition was as follows: Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this definition.33 9 This definition went on to include the following acts as evidence of aggression: invasion or attack by an armed force of a State, bombardment by an armed force of a State, blockade of ports or coasts by an armed force of a State, the use of mercenaries by a State to carry out acts of armed force and any other act that the Security Council determines is an act of aggression under the provisions of the Charter. With the renewed discussion of an ICC in the 1990s, the debate concerning a definition for the crime of aggression once again took center stage. With neither of the two ad hoc tribunals’ jurisdiction encompassing the crime of aggression, the Preparatory Committee did not have any recent precedent to call upon that dealt with individual acts, not state acts. Despite the definitional problem, it was clear that the Preparatory Committee believed that discussion of this issue must occur in Rome. The crime of aggression was included in the draft statute for the Rome Conference and it included three definitions.34 As the conference progressed, it became clear that there was support for the inclusion of this crime in the final statute, but once again, there was a lack of consensus on how to define this crime. The result is as follows: The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations.35 The crime of aggression is included in the list of crimes within the jurisdiction of the court, but its definition is yet to be determined. Even upon defining this crime, the definition must then pass through the procedures of an amendment to the statute, as Articles 121 and 123 define it. The Preparatory Committee during the November-December 1999 meeting has taken up this issue. At this meeting, the PrepCom chair, Philippe Kirsch, established a working group for this issue. This group is currently working on a draft text concerning the definition of crimes of aggression. Once the working group completes a draft, the text will be forwarded to the state parties for review and in a review conference, the parties to the ICC will decide whether or not to adopt this text. Unfortunately, this review conference will not occur until seven years after the ICC enters into force, but the goal is to eventually have this crime under the jurisdiction of the court. 10 Eric K. Leonard In terms of amending the jurisdiction of crimes, if a state party does not approve the amendment, then that state and its nationals shall be exempt from that amendment, while remaining party to the treaty. Therefore, if a state party refuses to approve the forthcoming definition of the crime of aggression, then the court “shall not exercise its jurisdiction when committed by that State Party’s nationals or on its territory.”36 This exclusion from amendments only applies to Articles 5, 6, 7 and 8—the articles relating to crimes under the court’s jurisdiction. As we can see, the jurisdiction of the court is quite broad. It includes genocide, crimes against humanity, war crimes, and eventually crimes of aggression. It is important to note that the court substantiated none of these crimes and their definitions. Instead, legal precedent and established international law dictate the scope and application of these crimes. Trigger Mechanisms The exercise of jurisdiction, or trigger mechanisms, was a very contentious issue at the Rome Conference. At the heart of the debate was whether state parties, the Security Council, and/or the independent prosecutor could refer a matter for investigation to the court.37 A large contingent of states, including Germany, along with the NGO Coalition, wanted the ICC to have universal and inherent jurisdiction over the four core crimes.38 Universal in the sense that no state would fall outside of the court’s purview and inherent in that the prosecutor would have the inherent power to pursue a criminal investigation without having to consult another authority. The United States strongly opposed the idea of an International Criminal Court that held both universal and inherent jurisdiction. For the United States’ delegates, the idea of an independent prosecutor who could trigger an investigation into any states’ domestic realm without having to seek authority from another source was ludicrous. The United States saw this as a clear violation of the principle of state sovereignty and the foundation for a politicized court that would act not in the name of international justice, but for its own self-interest. U.S. ambassador to the UN, Bill Richardson, explained U.S. concerns in the following manner: There is also a need for checks and balances with respect to the decisions of a single Prosecutor, who in theory also could be influenced by personal and political considerations. If the Prosecu- Case 258 tor has sole discretion to initiate investigations and file complaints—as some delegations have sought under the rubric of “inherent jurisdiction”—the results could be more idiosyncratic, possibly even more political, than the decisions of the Security Council.39 U.S. objections to the implementation of universal and inherent jurisdiction led to the need for negotiations at the conference. The United States proposed that the Security Council primarily control the trigger mechanisms for the court’s jurisdiction.40 Such a system would be similar to the practice of the war crimes tribunals in the former Yugoslavia and Rwanda. The prosecutor would have wide discretion within the situation once the Security Council approved the court’s jurisdiction over that situation. The U.S. position clashed with the German proposal, which called for universal jurisdiction with an independent prosecutor. The result was a compromise between these two positions. The final draft of the Rome Statute established both preconditions for the exercise of jurisdiction and the trigger mechanisms for an investigation. The court has jurisdiction over a situation if one of the following conditions exists: (a) A situation in which one or more of such crimes [as stated in Article 5 of the Rome Statute] appears to have been committed is referred to the Prosecutor in accordance with Article 14;41 (b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations;42 or (c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with Article 15.43 In other words, the court may initiate an investigation if a state party, the Security Council, or the prosecutor refers a situation to the court. If any of these actors determines that any of the crimes defined in Article 5 have been committed, they may refer the case to the prosecutor for further investigation. The case is then in the hands of the prosecutor and he/she must decide whether there is sufficient evidence to proceed. Although this appears to be an approval of universal jurisdiction, it is not. Certain preconditions must Case 258 Establishing an International Criminal Court exist before the court can exercise its jurisdiction. These preconditions establish the territorial jurisdiction of the court and limit the application of its power. Article 13 does not give the court universal jurisdiction. A state party cannot refer any situation to the prosecutor. Spatial considerations determine where and when the court may exercise its power. According to Article 12, the court has jurisdiction within the territory of a state that is party to the statute. Therefore, if a one or more of the crimes defined in Article 5 were committed on a state’s territory that is party to the statute, then the ICC has jurisdiction. The ICC also has jurisdiction if the crime was committed on board a vessel or aircraft that is registered by a state that is party to the statute. The ICC’s jurisdiction also extends to a situation in which the perpetrator of the crime is a national of a state that is party to the statute. The ICC also has jurisdiction over a nonparty state if that state voluntarily accepts the court’s jurisdiction. In combining both the preconditions and the trigger mechanisms, the result is the following: The initiation of an ICC investigation can be triggered by either a state that is party to the statute, the Security Council, or the prosecutor, as long as the crime occurred on a state’s territory that is party to the statute, or a vessel or aircraft that is registered to that state, or the perpetrator is a national of a state that is party to the statute. The only other time that the ICC can act in a nonparty situation is if that nonparty state consented or if the Security Council referred it to the court. If the Security Council refers a situation to the court, then the court has universal jurisdiction. Complementarity The court must also incorporate the principle of complementarity when considering whether it has legal jurisdiction. The principle of complementarity concerns the relationship that the International Criminal Court will have with the national authorities and domestic courts of state parties. A major concern for many nation-states is that the formation of a permanent ICC is an infringement of their state sovereignty. Advocates of the Rome Statute believe that the inclusion of the principle of complementarity allows for the institutionalization of humanitarian law, while still preserving the principle of state sovereignty. According to Article 17.1 of the Rome Statute, the principle of complementarity states that the Court shall determine that a case is inadmissible where: 11 (a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable to genuinely carry out the investigation or prosecution; (b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness of the State genuinely to prosecute. Thus, the relationship of the ICC with national judicial systems is a complementary one. If, and only if, the domestic judicial system cannot properly investigate or prosecute the alleged crime does the ICC have jurisdiction. Such a situation would most likely occur because of a lack of national infrastructure or a collapse of the state’s domestic judicial system. Unwillingness to investigate or prosecute is not as easy to identify. The Rome Statute holds that if a state is unwilling to investigate a crime, then the ICC has the right to prosecute the accused. The court shall determine unwillingness by whether one or more of the following situations exist: (1) The initiation of national judicial proceedings occurred for the purpose of shielding the accused from criminal responsibility. (2) Unjustifiable delay of the court proceedings occurred, thus showing the state’s lack of intent to impose justice. (3) If a domestic court does initiate judicial proceedings, they do not occur in an impartial and neutral manner. As a result, the Rome Statute of the International Criminal Court asserts that the state in question is not upholding the principles of international justice.44 Therefore, the court has a right to intervene and prosecute. These three situations are the only ones in which the ICC can impose its jurisdiction on a nation-state and take over the investigation and trial. The reason for the establishment of this type of system is that the court is meant to function for the interests of the victims and the international community as a whole. However, at the same time, the court must also “be complementary to national criminal jurisdictions.”45 As a result, during the Rome Conference it became crucial to the effectiveness of the ICC that the delegates establish specific guidelines concerning situations in which “unwillingness” by states to prosecute was occurring. In the aforementioned situations, Article 17.2 (ac), it is true that the court can claim primacy in a criminal case and override a state’s jurisdiction on that case. Many states, including the United States, 12 Eric K. Leonard see this as a clear violation of national sovereignty and the concept of nonintervention. However, if the ICC is to establish a sense of universal justice, then the provision for the court’s primacy over incapable or unwilling domestic legal systems is crucial. Without the inclusion of complementarity and the court’s jurisdictional primacy in certain situations, this only increases the ability of states to protect their own citizens from criminal responsibility and decreases the court’s ability to ascertain international justice. The ICC and the United Nations The relationship of the court with the United Nations is yet to be determined. Article 2 states that the Assembly of States Parties will approve an agreement in the future as to what the relationship between these two entities will entail. Although the court’s relationship to the UN is important, it is the court’s relationship with the Security Council that is problematic. I discussed the contentious nature of the Security Council’s role in the ICC earlier in this case, but the importance of this issue warrants some reiteration. The Rome Statute does establish a role for the Security Council. The Security Council can refer a situation to the prosecutor for investigation.46 Thus, the Security Council is one of the trigger mechanisms of the ICC, but it is also the most powerful of the trigger mechanisms. This is because not only can the Security Council initiate an investigation, but it can also initiate an investigation regardless of the state’s relationship to the court. Acting under Chapter VII of the UN Charter, the Security Council can refer a situation to the prosecutor regardless of whether the territory on which the alleged crime occurred is a party to the ICC, or whether the accused is a citizen of a state party. No matter the nationality of the accused or the territory on which the crime took place, the Security Council can declare ICC jurisdiction. In other words, the Security Council is the only trigger mechanism that has the ability to grant the court universal jurisdiction. Accompanying this powerful provision is the fact that the Security Council can ascertain a deferral of any ICC investigation for a period of twelve months. According to the Rome Statute: No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Case 258 Charter of the United Nations, has requested the Court to that effect; that the Council under the same conditions may be renewed by the Council under the same conditions.47 The Rome Statute grants the Security Council the power to both initiate an investigation and delay further action by the court. As a result, it is undeniable that the actions of the UN Security Council will have a bearing on the future of the ICC and the cases that it pursues. Thus, the central debate concerns how much power should the ICC grant the Security Council. Enforcement The final issue that we must discuss is the enforcement mechanisms for the ICC. As with most intergovernmental organizations, enforcement of the Rome Statute will rely on the state parties. Scholars often see this reliance as the Achilles heel of international law. John Fried describes this as the “jailer theory” of international law.48 This theory describes the foundation of international law as a sizeable body of accepted norms, but lacking reliable enforcement capabilities. Without the ability to enforce these norms, international law remains a weak form of international justice. The main problem with enforcement is that international law tends towards a system of self-help. The institutionalization of international law usually comes in the form of an intergovernmental organization (IGO). An IGO is an association of states that, through the process of institutionalization, pursues a common goal.49 State members are the source of power for an IGO, and despite their trans-sovereign mandate, IGOs still rely on sovereign states to enforce the underlying treaty that formed the IGO.50 This is no different for the International Criminal Court, which, if ratified, will fit the definition of an IGO. In order to enforce the court’s judgments, the ICC will have to rely on the state parties to cooperate. Without their cooperation, the ICC cannot fulfill its mandate. Arrests, transfer of prisoners, and enforcement of court sentences all rely on the cooperation of member states.51 If member states refuse to uphold the norms contained within this statute, then the ICC will simply become a dead letter treaty. The only recourse that the ICC has to a state’s failure to comply is referral of the matter to the Assembly of State Parties or the United Nations Security Council,52 and even then, the enforcement mechanism relies on the action of nation-states. This issue of Case 258 Establishing an International Criminal Court enforcement is crucial to an analytical analysis of the ICC. At this point, it is important to note that the enforcement mechanism of the ICC, as with most IGOs, does appear to rely solely on member states. The question that scholars have to address in the future is whether this form of enforcement prevents the formation of a strong and effective International Criminal Court. CONCLUSION The global community undertook the task of establishing a permanent International Criminal Court because they believe that it will end impunity for those that commit mass atrocities. In this sense, many scholars see the court as the first truly global form of justice. Whether it will live up to that label is 13 currently unknown. However, what we do know is that the Rome Conference was a historic step forward in the fight to uphold humanitarian law. Only time will tell whether the court is the best form of international justice or, as the United States claims, it is a flawed institution. That is a question that scholars and policymakers (along with students of international politics) must now debate. To date, 139 nation-states have signed the statute and 52 have ratified it.53 Once sixty nationstates ratify the statute, the court will begin to function. Only then will the world be able to judge the effectiveness of the court and its impact on world politics, state sovereignty, and impunity. We can only hope that if ratified, the court will act as a deterrent for future situations like Rwanda and the former Yugoslavia, and not as a political tool. NOTES 1. The Courmayeur Plan was titled such because of its origin at a meeting in Courmayeur, Italy, 4–8 May 1998. 2. Between 1996 and 1998, there were six PrepCom meetings. The PrepCom leadership invited all nationstates to send delegates and it was during these meetings that many of the details surrounding the draft statute originated. 3. Donald W. Jackson, “Creating a World Court Is Like Making Sausage–Except It Takes Longer,” The Texas Observer, 30 June 1998: 4. 4. Cherif M. Bassiouni, Statute of the International Criminal Court (Dordrecht, The Netherlands: Martinus Nijhoff Publishers, 1992), 31–32. 5. Fanny Bendetti and John L. Washburn, “Drafting the International Criminal Court Treaty: Two Years to Rome and an Afterword on the Diplomatic Conference,” Global Governance 25 (1992), 21, and William Pace, “Relationship between the ICC and Nongovernmental Organizations,” in Reflections on the International Criminal Court: Essays in Honor of Adrian Bos, ed. Herman A. M. von Hebel, Johan G. Lammers, and Jolien Skukking (The Hague: T.M.C. Asser Press, 1999), 206, discuss this list of defining principles. 6. Roy S. Lee, “The Rome Conference and Its Contributions to International Law,” in The International Criminal Court: The Making of the Rome Statute–Issues, Negotiations, Results, ed. Roy S. Lee (The Hague: Kluwer Law International, 1999), 28, cites Article 36 of the Rome Statute of the International Court of Justice. 7. Rome Statute of the ICC, Article 12.1. 8. Bendetti and Washburn, “Drafting the ICC,” 31. 9. The nonaligned movement dates back to the cold war. It was initially an attempt to assert independence from both the Western powers and the Soviet bloc. In this case, the goal is to counteract the power of the United States and the other Security Council members. 10. The main opponents to the final draft statute were the United States, Israel, China, Iran, Iraq, Libya, and the Sudan. All of these states voted against the final draft of the Rome Statute. 11. David J. Scheffer, “Development at the Rome Treaty Conference (transcript of a speech to the Foreign Relations Committee, United States Senate),” U.S. Department of State Dispatch 9 (1998) and “The United States and the International Criminal Court,” The American Journal of International Law 93 (1999), discuss these objections. 12. Scheffer, “United States and the ICC,” 2. 13. Scheffer, “United States and the ICC,” 19–20. 14. The NGO Coalition was especially helpful to the smaller states. The NGO Coalition was able to give them information concerning occurrences in meetings they could not attend and information that may not have been available to their delegates. Their impact on these nationstates was tremendous. 15. Abram Chayes and Anne-Marie Slaughter, “The ICC and the Future of the Global Legal System,” in The United States and the International Criminal Court: National Security and International Law, ed. Sarah B. Sewall and Carl Kaysen (Lanham, Md.: Rowman & Littlefield Publishers, Inc., 2000), 241. 16. Bassiouni, Statute of the ICC, 25. 17. Boutros Boutros-Ghali, “Foreword,” in NGOs, The UN and Global Governance, ed. Thomas G. Weiss and Leon Gordenker (Boulder, Colo.: Lynne Rienner Publishers, 1996), 7. (This author added the emphasis.) 18. William Pace and Thieroff, “Participation of Nongovernmental Organizations,” in The International Criminal Court: The Making of the Rome Statute–Issues, Negotiations, 14 Eric K. Leonard Results, ed. Roy S. Lee (The Hague: Kluwer Law International, 1999), 391. William Pace served as convenor of the CICC and is executive director of the World Federalist Movement–Institute for Global Policy, which serves as secretariat for the NGO Coalition. Therefore, any statements taken from William Pace are indicative of the CICC platform. 19. Pace, “Relationship between the ICC and Nongovernmental Organizations,” 200. At the Rome Conference there were 235 NGOs that were accredited by the General Assembly to act as official participants. official CICC website: <http:// 20. The www.iccnow.org> and every issue of The International Criminal Court Monitor lists this statement. 21. The International Criminal Court Monitor (any issue) or <http://www.iccnow.org>. 22. Such scholars as Karen Berg, “Permanent International Criminal Court,” UN Chronicle 34 (1997); Lawyers Committee for Human Rights, The Rome Treaty for an International Criminal Court: A Brief Summary of the Main Issues (New York, N.Y.: International Criminal Court Briefing Series, 1998); and Marie-Claude Roberge, “The New International Criminal Court: A Preliminary Assessment,” International Review of the Red Cross 93 (1998), 671–691, use the term “core crimes.” 23. The only change from the Genocide Convention definition to the Rome Statute definition is the replacement of the word “Convention” for the word “Statute.” 24. Rome Statute of the ICC, Article 7.1. 25. Darryl Robinson, “Defining Crimes Against Humanity at the Rome Conference,” The American Journal of International Law 93 (1999): 46. 26. There are also sections of the war crimes article that overlap with the Convention on the Rights of the Child (1989) and the Convention for the Protection of Cultural Property (1954). 27. Rome Statute of the ICC, Article 8.1. 28. Rome Statute of the ICC, Article 8.2 (f), states that the Rome Statute’s definition of war crimes does apply to “armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups.” 29. Rome Statute of the ICC, Article 8.2 (d) and (f). 30. Mahnoush H. Arsanjani, “The Rome Statute of the International Criminal Court,” The American Journal of International Law 93 (1999), 34–35. 31. As Philippe Kirsch and John T. Holmes, “The Rome Conference on an International Criminal Court: The Negotiating Process,” The American Journal of International Law 93 (1999), 7–8, describe, one of the controversial elements of this negotiation was that the use of nuclear weapons was not prohibited, but the use of chemical and biological weapons was. Policymakers often consider the latter weapons the “nuclear weapons of the poor,” and so the issue split the delegates between developed versus underdeveloped nations. 32. Bassiouni, Statute of the ICC, 14. Case 258 33. Report of the Special Committee, Supp. No. 19, A/ 9619 of the Twenty-Ninth Session, 1974, Article 1. Reprinted in Benjamin B. Ferencz, Defining International Aggression: The Search for World Peace (Dobbs Ferry, N.Y.: Oceana Publications, Inc., 1975), 562. 34. Report of the Preparatory Committee on the Establishment of an International Criminal Court: Draft Statute and Draft Final Act, Article 5. Reprinted in Bassiouni, Statute of the ICC, 120–122. 35. Rome Statute of the ICC, Article 5.2. 36. Rome Statute of the ICC, Article 121.5. 37. Kirsch and Holmes, “Rome Conference,” 8–9; and Howard Ball, Prosecuting War Crimes and Genocide: The Twentieth-Century Experience (Lawrence, Kans.: University Press of Kansas, 1999), 211–213. 38. Kirsch and Holmes, “Rome Conference,” 8–9. 39. I extracted this excerpt from a speech given by Bill Richardson to the General Assembly on 31 October 1996. Reprinted in Howard Ball, Prosecuting War Crimes and Genocide: The Twentieth Century Experience (Lawrence, Kans.: University Press of Kansas, 1999), 203. 40. David J. Scheffer, “U.S. Policy and the Proposed Permanent International Criminal Court (transcript of a speech at the Carter Center, Atlanta, Georgia).” U.S. Department of State Dispatch 8 (1997), 2. 41. Article 14 discusses the process by which a state party would refer a case to the prosecutor. This referral should specify the circumstances surrounding the crime and include proper documentation that proves that such a crime has occurred. 42. Chapter VII of the United Nations Charter involves the action that the Security Council can take in situations where there is a threat to peace, a breach of peace, or an act of aggression. 43. Rome Statute of the ICC, Article 13. Article 15 of the Rome Statute describes the process that must occur if the prosecutor is to initiate an investigation without referral by either a state party or the Security Council. This article states that the prosecutor may initiate an investigation proprio motu, but that in order to proceed with the investigation and seek an indictment, the prosecutor must submit a request to the Pre-Trial Chamber and receive their authorization. 44. Rome Statute of the ICC, Article 17.2 (a) (b) and (c). 45. Rome Statute of the ICC, Preamble paragraph 10. 46. Rome Statute of the ICC, Article 13 (b). 47. Rome Statute of the ICC, Article 16. 48. John H. E. Fried, “International Law–Neither Orphan Nor Harlot, Neither Jailer Nor Never-Never Land,” in International Law: Classic and Contemporary Readings, ed. Charlotte Ku and Paul F. Diehl (Boulder, Colo.: Lynne Rienner Publishers, 1998), 27. 49. Robert L. Bledsoe and Boleslaw A. Boczak, The International Law Dictionary (Santa Barbara, Calif.: ABC: CLIO, 1987), 75–76. 50. Ursula C. Tafe, “Intergovernmental Organizations,” in Beyond Sovereignty: Issues for a Global Agenda, ed. Case 258 Establishing an International Criminal Court Maryann K. Cusimano (Boston: Bedford/St. Martin’s Press, 2000), 231–234, discusses the reliance that IGOs have on nation-states despite the changing international environment and the rise in trans-sovereign problems. 51. The specifics of these issues are all contained within the Rome Statute. The arresting of accused criminals is contained in Article 89. Article 89 and Article 93.7 15 also contain the conditions for transfer. Article 103 describes the enforcement of sentencing procedures. 52. Rome Statute of the ICC, Article 87.7. 53. The number of signatories and ratifications were effective as of 1 March 2002. A list of the signatories and ratifications appears in the Appendix. 16 Eric K. Leonard APPENDIX Rome Statute Signature (139) and Ratification (52) Chart, as of March 1, 2002 (Alphabetical Order) Country Signature Date Ratification Date Albania 07-18-98 Algeria 12-28-00 Andorra 07-18-98 04-30-01 Antigua and Barbuda 10-23-98 06-18-01 Argentina 01-08-99 02-08-01 Armenia 10-01-99 Australia 12-09-98 Austria 10-07-98 Bahamas 12-29-00 Bahrain 12-11-00 Bangladesh 09-16-99 Barbados 09-08-00 Belgium 09-10-98 06-28-00 Belize 04-05-00 04-05-00 Benin 09-24-99 01-22-02 Bolivia 07-17-98 Bosnia and Herzegovina 07-17-00 Botswana 09-08-00 Brazil 02-07-00 Bulgaria 02-11-99 Burkina Faso 11-30-98 Burundi 01-17-99 Cambodia 10-23-00 Cameroon 07-17-98 Canada 12-18-98 Cape Verde 12-28-00 Central African Republic 12-07-99 Chad 10-20-99 Chile 10-11-98 Colombia 10-10-98 Comoros 09-22-00 Congo (Brazzaville) 07-17-98 Costa Rica 10-07-98 Cote d’Ivoire 11-30-98 12-28-00 09-08-00 07-07-00 10-03-01 06-07-01 Case 258 Case 258 Establishing an International Criminal Court Rome Statute Signature (139) and Ratification (52) Chart, as of March 1, 2002 (Alphabetical Order) Country Signature Date Ratification Date Croatia 10-12-98 05-21-01 Cyprus 10-15-98 Czech Republic 04-13-99 Democratic Republic of the Congo 09-08-00 Denmark 09-25-98 Djibouti 10-07-98 Dominica acceded 06-21-01 02-12-01 Dominican Republic 09-08-00 Ecuador 10-07-98 Egypt 12-26-00 Eritrea 10-07-98 Estonia 12-27-99 01-30-02 Fiji 11-29-99 11-29-99 Finland 10-07-98 12-29-00 France 07-18-98 06-09-00 Gabon 12-22-98 09-21-00 Gambia 12-07-98 Germany 12-10-98 Georgia 07-18-98 Ghana 07-18-98 Greece 07-18-98 Guinea 09-08-00 Guinea-Bissau 09-12-00 Guyana 12-28-00 Haiti 02-26-99 Honduras 10-07-98 Hungary 12-15-98 11-30-01 Iceland 08-26-98 05-25-00 Iran 12-31-00 Ireland 10-07-98 Israel 12-31-00 Italy 07-18-98 Jamaica 09-08-00 Jordan 10-07-98 Kenya 08-11-99 Kuwait 09-08-00 02-05-02 12-11-00 12-20-99 07-26-99 17 18 Eric K. Leonard Rome Statute Signature (139) and Ratification (52) Chart, as of March 1, 2002 (Alphabetical Order) Country Signature Date Krygyzstan 12-08-98 Latvia 04-22-99 Lesotho 11-30-98 Liberia 07-17-98 Lichtenstein 07-18-98 Lithuania 12-10-98 Luxembourg 10-13-98 Macedonia 10-07-98 Madagascar 07-18-98 Malawi 03-03-99 Mali 07-17-98 Malta 07-17-98 Marshall Islands 09-06-00 Ratification Date 09-06-00 10-02-01 09-08-00 08-16-00 12-07-00 Mauritius 11-11-98 Mexico 09-07-00 Monaco 07-18-98 Mongolia 12-29-00 Morocco 09-08-00 Mozambique 12-28-00 Namibia 10-27-98 Nauru 12-13-00 11-12-01 Netherlands 07-18-98 07-17-01 New Zealand 10-07-98 09-07-00 Niger 07-17-98 Nigeria 06-01-00 09-27-01 Norway 08-28-98 02-16-00 Oman 12-20-00 Panama 07-18-98 Paraguay 10-07-98 05-14-01 Peru 12-07-00 11-10-01 Philippines 12-28-00 Portugal 10-07-98 02-05-02 Poland 04-09-99 11-12-01 Republic of Korea 03-08-00 Republic of Moldova 09-08-00 Romania 07-07-99 Case 258 Case 258 Establishing an International Criminal Court Rome Statute Signature (139) and Ratification (52) Chart, as of March 1, 2002 (Alphabetical Order) Country Signature Date Ratification Date Russian Federation 09-13-00 Samoa 07-17-98 San Marino 07-18-98 Sao Tome and Principe 12-28-00 Senegal 07-18-98 Seychelles 12-28-00 Sierra Leone 10-17-98 Slovakia 12-23-98 Slovenia 10-07-98 Solomon Islands 12-03-98 South Africa 07-17-98 11-27-00 Spain 07-18-98 10-25-00 Sudan 09-08-00 Sweden 10-07-98 06-28-01 Switzerland 07-18-98 10-14-01 Syria 11-29-00 Tajikistan 11-30-98 Tanzania 12-29-00 Thailand 10-02-00 Trinidad and Tobago 03-23-99 Uganda 03-17-99 Ukraine 01-20-00 United Arab Emirates 11-27-00 United Kingdom 11-30-98 United States of America 12-31-00 Uruguay 12-19-00 Venezuela 10-14-98 Yemen 12-28-00 Yugoslavia 12-19-00 Zambia 07-17-98 Zimbabwe 07-17-98 05-13-99 02-02-99 09-15-00 12-31-01 05-05-00 04-06-99 10-04-01 06-07-00 09-06-01 19 ...
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