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Justice & The Generals
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Around the World
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Around the World - The Issues
Introduction The Issues Worldwide Human Rights Human Rights Survey

The International Criminal Court
by Anne E. Mahle

The first recorded instance of the convening of an international court to address criminal actions was in 1474. This tribunal, convened by Charles, the Duke of Burgundy, was established to address the crimes of "murder, rape, perjury and other crimes violating the laws of God and man." Since that time, the process of establishing a permanent international criminal court has occurred in fits and starts, often finding renewed support after major military conflicts.

The modern impetus for a permanent international criminal court gained support, not surprisingly, after the International Military Tribunal for the Prosecution and Punishment of the Major War Criminals of the European Axis and the International Military Tribunal for the Far East ("Nuremberg Tribunal" and "Tokyo Tribunal," respectively), which sought to address, through a judicial criminal process, the massive atrocities committed during World War II. In 1948, the UN General Assembly voted to authorize the International Law Commission (an independent commission comprised of international lawyers and legal scholars from countries throughout the world) to explore the possibility of establishing an international criminal court that could perform similar functions to the World War II tribunals but on a permanent basis. Although the International Law Commission did conclude that a permanent international criminal court was a worthwhile endeavor, Cold War power struggles and differences over how to impose penalties on states for actions of aggression against one another stalled its creation for the next 50 years.

Emerging from the Cold War, the world community confronted a number of conflicts where the commission of widespread atrocities could be neither ignored nor contained. In the wake of the UN Security Council's creation of the ad hoc tribunals to address war crimes in the Former Yugoslavia and Rwanda (International Criminal Tribunal for the Former Yugoslavia [ICTY] and International Criminal Tribunal for Rwanda [ICTR], respectively) and its inability or unwillingness to create similar tribunals to address atrocities in Cambodia, Sierra Leone, El Salvador, and other countries (due to costs, political recalcitrance, and organizational infrastructure), many nations recognized the need for a permanent international criminal court.

The UN General Assembly established an official Preparatory Committee in 1995 to address the issue. This "Prep Comm" was charged with drafting a governing statute that would define the structure of such an organization and its jurisdictional reach. Using the 1949 Geneva Conventions and their Protocols, the Genocide Convention of 1948, and the case law developed in and experiences gained from the ad hoc tribunals in Nuremberg, Tokyo, and the ICTY/ICTR as starting points, the Prep Comm met six times between 1996 and 1998. Over the course of these meetings, the committee drafted a statute for an International Criminal Court (ICC). This draft statute was presented to delegations from UN member states in Rome in the summer of 1998 at a full diplomatic conference. The goal of the Rome Conference was to finalize and adopt a statute that would govern a permanent international criminal court. By its end, the participating member states had adopteda statute was adopted by a vote, rather than a statement of consensus. Commonly referred to as the Rome Statute, it established the court's jurisdiction (the crimes on which it can rule and the individuals and states subject to its power); its organizational structure; its operating rules; and the applicable law, including the law of command responsibility and other principles of humanitarian and criminal law. As the Preamble of the statute states, its purpose is "to put an end to impunity for the perpetrators of [the most serious crimes of international concern] and thus prevent the commission of such crimes."

At the Rome Conference there was consensus with respect to the crimes falling under the jurisdiction of the ICC: genocide, war crimes, crimes against humanity, and the crime of aggression. Notably, the Rome Statute's definition of crimes against humanity and war crimes includes rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, and other crimes of sexual violence. The inclusion of these crimes, not included in the 1949 Geneva Conventions or their Protocols, provides a clear example of how international humanitarian law has evolved as a result of the cases brought before the ICTR and ICTY; in particular, the ICTY's prosecution of Serbian military forces for their crimes of sexual violence against Muslim women in eastern Bosnia was influential in the ICC's criminal definitions. The statute does not, however, define the crime of aggression, as member states determined that reaching an acceptable definition would have to come later, "no sooner than seven years after the Statute's entry into force."

On the other hand, there was not consensus on the ICC's jurisdiction over individuals, particularly those whose states are not parties to the statute. At the conclusion of the Rome Conference, the statute was adopted by a vote of 120 to 7, with 21 countries abstaining. The seven countries voting against it were the United States, Israel, China, Libya, Iraq, Qatar, and Yemen. Since July 1998, Israel has announced that it will sign the Rome Statute, leaving the United States in fairly undesirable company, as far as the human rights records of the other nonsignators are concerned.

The United States continues to have strong reservations about the jurisdictional reach of the ICC. As the only remaining superpower, the United States has legitimate concerns about politically motivated prosecutions and the ICC supplanting the United States' use of its own well-functioning domestic and military court system. Despite its vote against the statute at the conference, the United States has remained engaged in the development of the ICC. President Clinton signed the statute before leaving office in December 2000, just before the signing deadline. Now, ratification is in the control of the U.S. Senate. With or without the participation of the United States, the Rome Statute will go into effect and the ICC will become a reality. Under the terms of the statute, it enters into force "on the first day of the month after the 60th day following the date of deposit of the 60th instrument of ratification." To date, 139 countries have signed the treaty and 48 have deposited their ratifications with the United Nations in New York. The creation of the ICC will alter the legal landscape forever by creating a new and permanent mechanism to hold accountable the perpetrators of the most repugnant international crimes.

The United Nations home page for the ICC:
The full text of the Rome Statute of the ICC: or
Amnesty International January, 1997

About the Author
Anne Mahle is an attorney at Faegre & Benson in Minneapolis, Minnesota. During law school she worked on Romagoza et. al. v. Garcia et. al. under the supervision of Carolyn Patty Blum at the International Human Rights Law Clinic at the University of California Berkeley (Boalt Hall).

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  • Universal Jurisdiction
  • Command Responsibility
  • Yamashita Case
  • Rwanda and Former Yugoslavia
  • Military Tribunals Versus Civil Trials
  • The International Criminal Court