Establishing an
International Criminal Court

by Beth Lamont

The Humanist magazine, November / December 1998


The foundation for a new International Criminal Court (ICC) was laid this summer, June 15 through July 17, in Rome, Italy, during five tedious weeks of suspenseful and intricate negotiations in six official languages, among 162 nations. A historic United Nations conclave, barely mentioned by most U.S. media, the negotiations culminated, almost miraculously, in a signed draft document to try individuals for crimes against humanity.

The United States was one of the seven nations-including China, Iraq, and Libya-which did not sign the document.

Because of its status as a U.N. nongovernmental organization (NGO), the American Humanist Association, publisher of the Humanist, was invited to attend the negotiations as an observer and informal participants were more than three hundred other NGOs. Also in attendance were Amnesty International, Human Rights Watch, the Lawyers Committee for Human Rights, Global Policy Reform, and the World Federalist Movement, among others. Together they comprise the NGO Coalition for an International Court. While the coalition was formed in 1995, some members have been working to create an international criminal court since before the United Nations was founded.

In fact, efforts to create an ICC ... began back in the nineteenth century when, in 1872, Gustav Moynier, one of the founders of the International Committee of the Red Cross, proposed a permanent court in response to the crimes of the Franco-Prussian War. After the Nuremberg Judgment in 1946, there was renewed interest that resulted in the establishment of an International Law Commission (ILC), and an attempt was made at that time to create a Code of Crimes. In 1948, the U.N. General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide. Many reports and drafts were prepared during the following years, but the Cold War stymied all efforts.

Then in 1989, Trinidad and Tobago moved to resurrect the proposal for a permanent court. In 1994, The ILC presented a draft statute on an ICC to the U.N. General Assembly. Then followed more years of Preparatory Committee meetings, which were attended by governments, international law experts, and NGOs. In 1996, Italy's offer to host an ICC conference was accepted and a July 1998 date was set.

In March 1998, as the conference neared, U.S. Senate Foreign Relations Committee Chair Jesse Helms sent a letter to Secretary of State Madeleine Albright, declaring that the ICC would be "dead on arrival" in the Senate-unless the United States was given veto control over the court. In an op-ed piece for the May 13 Washington Post, Lawyers Committee for Human Rights Chair Norman Dorsen and Century Foundation/Twentieth Century Fund Senior Vice-President Morton H. Halperin called the United States' position the most serious roadblock in the way of the success of the Rome conference.... To ensure beyond all doubt that no American can be tried by the ICC, the Clinton administration is insisting that there be an affirmative vote of the U.N. Security Council-subject to a veto by the five permanent members-before the court's prosecutors can begin an investigation.

How can the United States, which purports to be "a nation of laws," be respectful of the law yet simultaneously above it? What must other nations, which have expressed a willingness to subject themselves to the jurisdiction of the court, think of the United States' refusal to do so? What ever happened to its world leadership? Regardless of the Clinton administration's position, what do U.S. citizens want? Perhaps this lapse in logic can be overcome by the democratic process.

A number of other questions also had to be forcefully hammered out for inclusion in the draft document: What will be the scope of this new International Criminal Court? What will it do? Where will it be located? Which crimes will it try? What will give it power, and will nations willingly accept its jurisdiction? When will it be in force? Who will have the right to bring charges? Who will its judges be and from which countries will they be selected? How can we trust their judgment? Will a nation willingly surrender to the court one of its citizens to be tried? Will the ICC have jurisdiction over those nations which choose not to participate? What will constitute jurisdiction: the nation in which a crime is committed, the homeland of the accused, or the homeland of the victim? What penalties will the court impose? Will there be capital punishment?

Among the agreements reached were the following:

* The ICC shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern.

* The ICC shall be brought into relationship with the United Nations through an agreement to be approved by an assembly of states parties to this statute and the seat of the court shall be established at The Hague in the Netherlands.

* The ICC has jurisdiction in accordance with this statute with respect to the following crimes: the crime of genocide; crimes against humanity; war crimes; and the crime of aggression.

The definitions of these crimes are spelled out in minute detail. Genocide is defined generally as "deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part." Crimes against humanity are defined as "enforced disappearance of persons," meaning arrest, detention or abduction of persons by, or with the authorization of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time.

War crimes are defined as "grave breaches of the Geneva Convention of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention." This is followed by fifty-six definitions of acts of aggression.

Terrorism and drug-related crimes were adopted into the document in an annexed resolution, despite opposition from the United States, and will be subject to definition at a review conference in the future. The United States argued that, although bringing terrorism and drug-related charges before an international court would not in itself be a problem, other agencies are better equipped to handle an ongoing investigation. Well, of course-at the present time. But this is a rather circuitous argument, in as much as the necessary investigative powers will be placed in the hands of the ICC prosecutor at some future time.

What will constitute the court's power? Each sovereign nation that signs the document will voluntarily relinquish certain state powers and agree to abide by the decisions of the court. Even heads of state and military leaders will be subject to the jurisdiction of the court, and signatory nations are obliged to surrender their own citizens if charged. Also, the new court cannot bring charges retroactively; it can only try crimes that occur after the jurisdiction of the court has been established.

It was also determined that penalties will not include capital punishment because one cannot condone a crime for which one is trying another person. The maximum penalty will be life imprisonment and, for some, a maximum of thirty years imprisonment. Some nations felt that such minimal prison time will make the court a laughingstock in view of the gravity of the crimes being tried; they insisted that executions were needed for a show of authority. Instead, the court will emphasize the concepts of reparation and compensation of victims. Provision has been made for a trust fund to be established for the benefit of victims of crimes and their families. This trust will be funded by fines and forfeiture of money and property.

One of the most crucial elements decided was who has the right to bring charges. Can individuals-such as mothers of the disappeared-accuse their tormentors, or must such charges be brought by the nation in which the crime has occurred? Must the nation of the accused be a party to the treaty and, if not, must it give voluntary consent to the jurisdiction of the court before the accused can be tried? Must all charges be funneled through and approved by the U.N. Security Council?

The good news is that there will be an independent prosecutor, who has the power to take initiative and investigate an alleged crime. This is called the principle of 'proprio motu' and was agreed upon by the majority of nations, again over the objections of the United States, which feared an overwhelmed court. The bad news is that this authority can be curbed by the U.N. Security Council, which will have the right to delay investigation for a renewable twelve-month period. And regrettably, no provision has been made to protect any victims, witnesses, or evidence during these periods. How can it be in the best interest of all nations for such a disproportionate amount of power to be concentrated in the hands of only five nations?

In addition to the Office of Independent Prosecutor, the ICC will consist of the Presidency, the Registry, a Pre-Trial Division, a Trial Division, and an Appeals Division. These offices will be filled by eighteen judges of high moral character, only one of whom may be nominated by each nation and elected by secret ballot at an Assembly of States Parties. These judges must have established competence in criminal law, international humanitarian law, and the law of human rights and have "extensive experience in a professional legal capacity which is of relevance to the judicial work of the court." Generally, these judges will serve for nine years and are to reflect an equitable geographical and gender representation.

All of the still unanswered questions will be resolved in time and with each new step in the development of the court, but the remarkable accomplishment stands. And although the draft document-now referred to as the Rome Treaty-is and will continue to be available for ratification by the participating nations, the next official step is for it to be reviewed and possibly adopted by the U.N. General Assembly. Or perhaps it will be subjected to further negotiations. It must be ratified by at least sixty participating nations in order to make the new court a reality. However, as of October, no nation had ratified the Rome Treaty and only fifty-three states had formally signed it.

So where does the leading superpower of the free world stand in this effort? Perhaps most telling is the report given by David Scheffer, head of the U.S. delegation to the Rome conference and ambassador-at-large, to the Senate Foreign Relations Committee on July 23. In it, he describes the United States as "the most powerful nation committed to the rule of law" but then proceeds to explain in great detail how certain U.S. objectives were not achieved and why the United States voted against the draft document:

" While we successfully defeated initiatives to empower the court with universal jurisdiction, a form of jurisdiction over nonparty states was adopted by the conference despite our strenuous objections. In particular, the treaty specifies that, as a precondition to the jurisdiction of the court over a crime, either the state of territory where the crime was committed or the state of nationality of the perpetrator of the crime must be a party to the treaty or have granted its voluntary consent to the jurisdiction of the court. We sought an amendment to the text that would have required both of these countries to be party to the treaty or, at a minimum, would have required that only the consent of the state of nationality of the perpetrator be obtained before the court could exercise jurisdiction. We asked for a vote on our proposal, but a motion to take no action was overwhelmingly carried by the vote of participating governments in the conference.

We are left with consequences that do not serve the cause of international justice. Since most atrocities are committed internally and most internal conflicts are between warring parties of the same nationality, the worst offenders of international humanitarian law can choose never to join the treaty and be fully insulated from its reach absent a Security Council referral. Yet multinational peacekeeping forces operating in a country that has joined the treaty can be exposed to the court's jurisdiction even if the country of the individual peacekeeper has not joined the treaty. Thus, the treaty purports to establish an arrangement whereby U.S. armed forces operating overseas could conceivably be prosecuted by the international court even if the United States has not agreed to be bound by the treaty. Not only is this contrary to the most fundamental principles of treaty law, it could inhibit the ability of the United States to use its military to meet alliance obligations and participate in multinational operations, including humanitarian interventions to save civilian lives. Other contributors to peacekeeping operations will similarly be exposed....

Finally, we were confronted on July 17 with a provision that no reservations to the treaty would be allowed. We had long argued against such a prohibition, and many countries had joined us in this concern. We believed that at a minimum there were certain provisions of the treaty, particularly in the field of state cooperation with the court, where domestic constitutional requirements and national judicial procedures might require a reasonable opportunity for reservations that did not defeat the intent or purpose of the treaty....

The U.S. delegation also sought to achieve other objectives . . . that in our view are critical. I regret that certain of these objectives were not achieved and therefore we could not support the draft that emerged on July 17.

Because of some myopia, the founding document for the establishment of a new international criminal court is not what NGOs had wanted; much more was advocated. But it is a new beginning, and the tremendous endeavor was not abandoned in despair-as was feared at many seemingly insurmountable impasses. Many clashing concepts were ultimately compromised in the overriding wish not to fail...


Beth K Lamont is the American Humanist Association's alternate NGO representative to the United Nations.

Human Rights, Justice, Reform

International Criminal Court