The agreement that created the International Criminal Court (ICC) is known as the Rome Statute of the International Criminal Court. On July 17, 1998, it was approved at a diplomatic gathering in Rome, Italy, and it became effective on July 1, 2002. The statute is ratified by 123 states as of November 2019. It establishes the structure, function, and jurisdiction of the court, among other things.
Genocide, crimes against humanity, war crimes, and the act of aggression were established as the four main international crimes by the Rome Statute. “Shall not be subject to any statute of limitations” applies to certain offences. The four primary international crimes are only subject to investigation and prosecution by the ICC under the Rome Statute when governments are “unable” or “unwilling” to do so on their own; the court’s authority is complementary to that of domestic tribunals. One exception to this rule is that the ICC may also have jurisdiction over crimes if its jurisdiction is approved by the United Nations Security Council. The court only has jurisdiction over crimes if they are committed on the territory of a state party or if they are committed by a national of a state party.
Purpose
The Rome Statute established four core international crimes:
- Genocide
- Crimes against humanity,
- War crimes,
- Crime of aggression
The United Nations General Assembly called a five-week diplomatic conference in Rome in June 1998 “to finalize and adopt a convention on the establishment of an international criminal court” after years of negotiations aimed at creating a permanent international tribunal to try people accused of genocide and other serious international crimes, such as crimes against humanity, war crimes, and crimes of aggression.
History of ICC
- Multiple attempts to establish a supranational and international tribunal led to the Rome Statute. The establishment of permanent courts with global jurisdiction saw its initial steps taken by the international community around the close of the 19th century. The most powerful nations’ delegates attempted to harmonize the laws of war and restrict the employment of cutting-edge weapons in the Hague International Peace Conferences in 1899 and 1907.
- It became a goal to punish those guilty for terrible atrocities so serious that they needed to be typified by being referred to as “crimes against humanity” following World War I, and much more so after the heinous crimes committed during World War II.
- The accused offenders were treated like criminals, with a regular trial, the right to a defense, and the presumption of innocence in order to reaffirm fundamental tenets of democratic civilisation. They were not executed in public squares or transported to torture camps, instead, they were treated as criminals. The Nuremberg trials were a turning point in legal history, and a number of accords that helped form the Rome Statute were signed shortly after.
- The Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the UN General Assembly Resolution No. 260 on December 9, 1948, was the first step toward the creation of an international permanent criminal tribunal with jurisdiction over crimes not yet covered by existing international treaties. The resolution expressed hope for a move in that direction by the Legal U.N. commission.
- Following the commission’s recommendations, the U.N. General Assembly formed a committee to create the statute and research the pertinent legal matters. A first draft was given in 1951, and a second draft followed in 1955. However, there were a number of delays that were caused by problems with the definition of the crime of aggression and were only resolved through diplomatic gatherings in the years after the statute’s enactment. The Cold War‘s geopolitical tensions also contributed to the delays.
- Trinidad & Tobago submitted a draft Statute in 1994 after asking the General Assembly to reopen the negotiations for the creation of an international criminal court in December 1989. After hearing the recommendations, the General Assembly established an ad hoc committee for the International Criminal Court and a preparatory committee that worked on the draft for two years (1996–1998).
- The Rome Statute-like legislation that the United Nations used to establish the ad hoc tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) have since undergone revisions in response to concerns voiced during the pre-trial or trial phases of the proceedings.
- The Draft Code of Crimes Against the Peace and Security of Mankind, which subsequently became the Rome Statute, was considered by the UN’s International Law Commission (ILC) to include the crime of ecocide. 19 nations in the Legal Committee officially backed Article 26 (crime against the environment), but it was eliminated due to objections from the Netherlands, the United Kingdom, and the United States of America.
Establishment of ICC
- During its 52nd session, the UN General Assembly decided to convene a diplomatic conference “to finalize and adopt a convention on the establishment of an international criminal court“. The conference was convened in Rome from 15 June–17 July 1998. It was attended by representatives from 161 member states, along with observers from various other organizations, intergovernmental organizations and agencies, and non-governmental organizations (including many human rights groups) and was held at the headquarters of the Food and Agriculture Organization of the United Nations, located about 4 km away from the Vatican (one of the states represented). On 17 July 1998, the Rome Statute was adopted by a vote of 120 to 7, with 21 countries abstaining.
- By agreement, there was no official record of each delegation’s vote regarding the adoption of the Rome Statute. Therefore, there is some dispute over the identity of the seven countries that voted against the treaty.
- It is certain that the People’s Republic of China, Israel, and the United States were three of the seven because they have publicly confirmed their negative votes; India, Indonesia, Iraq, Libya, Qatar, Russia, Saudi Arabia, Sudan, and Yemen have been identified by various observers and commentators as possible sources for the other four negative votes, with Iraq, Libya, Qatar, and Yemen being the four most commonly identified.
- India, Uruguay, Mauritius, the Philippines, Norway, Belgium, the United States, Brazil, Israel, Sri Lanka, China, Turkey, Singapore, and the United Kingdom all made public announcements of their voting justifications.
- Ten nations ratified the legislation simultaneously on April 11, 2002, during a special ceremony held at the United Nations headquarters in New York City. This brought the total number of signatories to sixty, which was the bare minimum needed to enact the statute, as specified in Article 126.
- The ICC is only permitted to pursue crimes that occurred on or after the treaty’s effective date of July 1, 2002.
- From May 31 to June 11, 2010, the states parties conducted a review conference in Kampala, Uganda. As a result of the Review Conference adopting a definition of the crime of aggression, the ICC is now able to prosecute such crimes. Additionally, it expanded the list of war crimes. To put these modifications into effect, the Act was recommended to be amended.
Jurisdiction, structure and amendment
Jurisdiction
The Rome Statute describes the composition and areas of authority of the ICC. Genocide, crimes against humanity, war crimes, and the crime of aggression are the four categories of crimes for which the ICC can bring cases against people (but not against states or organizations). Articles 6, 7, 8, and 8 bis of the Rome Statute each provide a description of these crimes. They must have been committed after the Rome Statute went into effect on July 1, 2002.
These crimes fall under the purview of the ICC in one of three situations: first, if they occurred on the territory of a State Party; second, if they were committed by a national of a State Party; or third, if the UN Security Council referred the matter to the Prosecutor. If the offenses were referred by the UN Security Council or if a State Party requests an investigation, the ICC may launch an inquiry before releasing a warrant. Otherwise, in order to launch an inquiry proprio motu (on its own initiative), the Prosecutor must get permission from a Pre-Trial Chamber of three judges. The sole form of immunity the ICC recognizes is the inability to bring charges against persons who were minors at the time the crime was committed. No authority, not even the head of state, is exempt from prosecution in this regard.
Structure
The Assembly of States Parties (ASP), the Trust Fund for Victims, and the International Criminal Court (ICC) were all formed by the Rome Statute. The ASP has two supporting organizations. These are the elected Bureau, which has a president and vice-president, and the Permanent Secretariat, which was founded in 2003. The ICC itself is composed of four organs: the Presidency, which mostly handles administrative duties; the Divisions, which house the judges who preside over trials and appeals; the Office of the Prosecutor; and the Registry, which supports the other three organs. Part 4 of the Rome Statute contains a description of these organs’ functions.
Amendments
A two-thirds majority of the states parties must agree to any alteration to the Rome Statute, and all amendments—aside from those that change the list of crimes—must be ratified by seven-eighths of the states parties before they take effect. A state party may withdraw right away if said amendment has not been ratified by said state party. Only the states parties that have ratified it will be affected by any changes made to the list of offenses that fall under the court’s purview. No seven-eighths majority of ratifications is required.