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The Birth of the International Criminal Court: The 1998 Rome Conference

  • Philippe Kirsch and John T. Holmes

Summary

The adoption of the Rome Statute of the International Criminal Court on July 17, 1998, was an historic achievement culminating decades of efforts to establish a permanent body to bring to justice those responsible for the most serious international crimes. The Bureau of the Committee of the Whole of the Conference played a leading role in forging the final package that was overwhelmingly endorsed by the Conference. In developing this package, the Bureau went to considerable lengths to consult delegations and members of civil society and to accommodate the concerns of the vast majority of participants at the Rome Conference. The Rome Statute is a carefully crafted instrument balancing complex legal and policy concerns and fully consistent with the norms and standards of international law. The successful outcome of the Rome Conference was due to the recognition that this balanced approach was timely and appropriate. The credit for the achievement of this seminal moment in history is shared by the commitment of a core group of states, the so-called Like-Minded Group, the dedication of a number of ministers and delegates to the goal, and the strong, vocal, and committed support of members of civil society.

Sommaire

L’adoption du Statut de la Cour pénale internationale le 17 juillet 1998 est un accomplissement historique, fruit de plusieurs décennies d’efforts en vue d’établir une institution permanente qui permette de traduire en justice les responsables des crimes internationaux les plus graves. Le Bureau du comité plénier de la Conférence a joué un rôle primordial dans le développement du texte final tel qu ‘approuvé par une majorité écrasante d’Etats à la Conférence. Ce faisant, le Bureau a déployé des efforts considérables pour consulter les délégations et les représentants du grand public, tels que les organisations non gouvernementales, ainsi que pour accommoder les préoccupations d’un grand nombre de participants à la Conférence. Le Statut de Rome, soigneusement rédigé, met en équilibre des préoccupations juridiques et politiques complexes, et ceci dans le cadre des normes et standards du droit international actuel. Cette approche équilibrée, développée en temps opportun, a permis le dénouement positif de la Conférence de Rome. Le succès du projet est le témoignage des efforts concentrés d’un groupe cadre d’États, les “pays pilotes, ” de ministres et de délégués dédiés à son objectif, et de l’appui soutenu du grand public et de ses représentants.

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1 The official title of the Conference was the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, Italy, June 15 to July 17, 1998.

2 See under text heading “The Final Package,” infra.

3 The United States requested a vote in the Conference Plenary but specified that it did not request a recorded vote. Therefore, there is no official record of how states voted.

4 See under text heading “Organization of the Conference,” infra.

5 The Work of the International Law Commission 29–30 (5th ed., UN, 1996).

6 Ibid., 30–31. A definition of aggression was developed by the General Assembly in 1974: see UN Doc A/RES/3314(XXIX).

7 UN DOC.A/C.6/44/L.18 (1989).

8 UNGA Resolution 44/39 (Dec. 4, 1989).

9 UNGA Resolution 47/33 (Nov. 25, 1992).

10 Official Records of the General Assembly, 49th Sess., Supp. No. 10 (A/49/10).

11 UNGA Resolution 49/53 (Dec. g, 1994).

12 UNGA Resolution 50/46 (Dec. 11, 1995).

13 Report of the International Law Commission on its Forty-Sixth Session, Draft Statute for an International Criminal Court, May 2 to July 22, 1994 (G.A., 49th Sess., Supp. No. to (A/49/10), 1994.

14 UN Doc. A/Conf. 183/2/Add.i (finalized Apr. 14, 1998).

15 These co-ordinators, integrated into an “enlarged Bureau,” would later play a key role at the Rome Conference. Early indications of this role came at the time of two meetings of the enlarged Bureau organized byAdriaan Bos at Zuthphen, the Netherlands, in January 1998 and at Courmayeur, Italy, in May 1998. Those meetings served respectively to identify duplication and inconsistencies in the draft statute, and to prepare the organization of the Conference, including its work plan and the schedule for working groups. Without this preparatory work, considerable time could have been lost at the Conference through discussion of the organization of work. Since its duration was already extremely short considering its mandate, it is unclear whether the Conference would then have been able to complete its task.

16 Art. 17, para. 2 of the ICC Statute.

17 The compromise was supported by the overwhelming majority of delegations at the PrepCom. However, several states registered reservations and insisted that notations be made in the draft statute reflecting the view that alternative approaches to complementarity existed. Despite these disclaimers, the complementarity test was used at the March 1998 PrepCom to produce an article on ne bis in idem (what became Art. 20) and at Rome only minor changes were made to the complementarity article (Art. 17).

18 The parts of the statute are as follows: 1. Establishment of the Court; 2. Jurisdiction, Admissibility and Applicable Law; 3. General Principles of Criminal Law; 4. Composition and Administration of the Court; 5. Investigation and Prosecution; 6. The Trial; 7. Penalties; 8. Appeal and Review; 9. International Cooperation and Judicial Assistance; 10. Enforcement; 11. Assembly of States Parties; 12. Financing; 13. Final Clauses.

19 There was an understanding among delegations that the statute was not supposed to create new law, but only include crimes existing under current international law. There were, however, significant differences as to what exactly constituted current international law. See, e.g., the Report of the Preparatory Committee on the Establishment of an International Criminal Court, Vol. 1 (Proceedings of the Preparatory Committee during Mar.-Apr. and Aug. ι996), G.A., 5 ist Sess., Supp. No. 22 (A/51/22) at 20 [hereinafter Report of the Preparatory Committee].

20 A few states insisted for a long time that only war crimes that were committed as part of a plan or policy or as part of large-scale commission should be subject to the jurisdiction of the court: Report of the Preparatory Committee, supra note 19.

21 UNDoc.A/Conf.183/INF/3 (June 5, 1998).

22 Independent publication of Inter Press Service, in partnership with the NGO No Peace without Justice International. It received funding from the European Union and support from the Coalition for an International Criminal Court.

23 The first week of the Conference witnessed the election by acclamation of the Conference officers, the adoption of the Conference’s Rules of Procedure (UN Doc. A/Conf. 183/2/Add.2/Rev. 1), which had been largely negotiated in New York before the Conference, the election of the General Committee (which, in the Rules of Procedure, was to play an important role, but in fact held only one short meeting early in the Conference), and the establishment of the Drafting Committee and the Credentials Committee. The Plenary was opened by the President of Italy and was well attended by a number of foreign and justice ministers. Virtually every delegation addressed the Conference.

24 The Plenary dealt with the organization of work, policy statements of a general nature (which lasted four days), and the formal adoption of the statute at the end of the Conference. The Committee of the Whole was responsible for the development of the statute. The Drafting Committee was responsible for ensuring proper and consistent drafting throughout the statute in all languages. In general, issues once debated in Committee of the Whole were referred to Working Groups or co-ordinators. The latter then reported the results of their work to the Committee of the Whole, and texts accepted by the Committee of the Whole were referred to the Drafting Committee. Texts refined by the Drafting Committee had also to be approved by Committee of the Whole. The final report was sent from the Committee of the Whole to the Plenary, with a complete text, on the final day of the Conference. There were some variations on this procedure – e.g., some parts of the draft statute were sent directly to working groups or to the Drafting Committee without preliminary Committee of the Whole discussion (e.g., some procedural provisions), and Part 2 of the statute did not go to the Drafting Committee except informally.

The work of the Committee of the Whole was greatly assisted by the able and very dedicated members of the Secretariat. In particular, Mr. Hans Corell represented the UN Secretary-General and Mr. Roy S. Lee acted as Executive Secretary. Ms. Mahnoush H. Arsanjani served as Secretary to the Committee of the Whole, which greatly benefited also from the assistance of Ms. Christiane Bourloyannis-Vrailas and Ms. Virginia Morris, Assistant Secretaries of the Conference.

25 Chairman: Philippe Kirsch (Canada), Vice-Chairs: Silvia Fernandez di Gur-mendi (Argentina), Constantin Virgil Ivan (Romania), and Phakiso Mocho-choko (Lesotho); Rapporteur: Yasumasa Nagamine (Japan).

26 The negotiation of a number of important segments of the statute was facilitated by the continuity of leadership. Mr. Per Saland (Sweden) co-ordinated the general principles of criminal law; Ms. Silvia Fernandez de Gurmendi (Argentina) chaired the working group on procedures, continuing the role it began in the PrepCom; Mr. Rolf Fife (Norway) led on penalties; Mr. Rama Rao (India) co-ordinated the parts on the assembly of state parties and the financing of the court; the United States co-ordinated the part on enforcement; and Mr. John T. Holmes (Canada) continued to lead on provisions related to complementarity.

27 Mr. Waleed Sadi (Jordan) agreed to co-ordinate the articles relating to genocide and crimes against humanity; Mr. Herman A. M. van Hebel (Netherlands) led on war crimes; Mr. Tuvako Manongi (Tanzania) chaired consultations on aggression and treaty crimes; Mr. Erikki Kourula (Finland) co-ordinated the section on jurisdiction; Mr. Christian Maquiera (Chile) led on the role of the Security Council; Mr. Gilberto Vergne Saboia (Brazil) co-ordinated the role of the prosecutor; Mr. Phakiso Mochochoko (Lesotho) assumed responsibility for co-operation; Prof. Medard R. Rwelamira (South Africa) co-ordinated the part on the composition of the court; and, Mr. Tuiloma Neroni Slade (Samoa) coordinated the final clauses of the statute. In addition, many of the co-ordinators themselves named sub-co-ordinators or facilitators to manage the consultations on specific issues or sections of their areas of responsibility.

28 The President of the Conference stated at the time of the addition of Art. 80 to the ICC statute, “It should be noted that not including the death penalty in the Statute would not in any way have a legal bearing on national legislations and practices with regard to the death penalty. Nor shall it be considered as influencing, in the development of customary international law or in any other way, the legality of penalties imposed by national systems for serious crimes”: UN Doc.A/Conf.183/C.1/WGP/L.14/Add.3/Rev.1 (July 17, 1998).

29 Since the end of the Rome Conference, many Caribbean states have reviewed their positions and now support the Rome Statute. Trinidad and Tobago has signed and ratified the statute.

30 See Arts. 7(1)(g)(h),(2)(c), (3); 8(2)(3)(vi);36(8)(a)(iii),(b); 42(9); 43(6); 44(2); 61 (30 68(1) of the ICC statute.

31 Ibid., Arts. 7 (1) (g), (2) (f); 8 (2) (b) (xxii).

32 Ibid., Art. 7(3).

33 Section G of the “Strategic Objectives and Actions: Women in Power and Decision-making,” Platform for Action and the Beijing Declaration, Fourth World Conference on Women, Beijing, China (Sept. 4–15, 1995).

34 Art. 36(8) (a) (iii) of the ICC statute.

35 Extensive negotiations were conducted, e.g., on the issues of trial in absentia and the prosecution and punishment of legal persons. Ultimately, these concepts proved too complex and controversial to be included in the statute. Similarly, the principle of providing compensation for victims of crimes received wide support, but the mechanisms for funding such compensations proved controversial. Suggestions were made for an innovative system involving direct compensation by the court, for using court resources, or for giving the court the power to render orders legally enforceable in states. All these proposals met with strong objections. Solutions are contained in Arts. 75, 77, and 79 of the statute. Art. 75 permits the court to order convicted persons to make reparations to victims. Art. 77 allows the court to order the forfeiture of proceeds, property, and assets derived from crimes. Art. 79 establishes a trust fund for compensation to victims, the moneys being derived from fines and forfeitures as well as voluntary contributions from states and other entities.

36 All states agreed that parties to the statute should be obliged to co-operate with the court in the prosecution of accused persons. However, there were concerns regarding requests by the court for sensitive national security information. The key divide among states was whether the court or the state making the claim should decide if national security information should be protected. Concerning requests for co-operation, the statute provides in Arts. 72 and 93 that states can refuse to disclose information or provide documents on the basis of national security. However, the court can consult in camera with the state to ensure co-operation and can refer the matter to the assembly of state parties if it believes the state is not acting in accordance with its obligations.

37 E.g., agreement was reached on the age of persons on whom the court could exercise jurisdiction (18 years, thus excluding child offenders and the need to establish separate juvenile justice and penal systems) (Art. 26).

38 The task was to identify the threshold or scale of atrocity that elevates ordinary domestic crimes to crimes against humanity. The threshold adopted is contained in the chapeau of Art. 7, para. 1 of the ICC statute. For a thorough discussion, see Robinson, Darryl, “Defining ‘Crimes Against Humanity’ at the Rome Conference,” (1999) 93 A.J.I.L. 43.

39 Report of the Preparatory Committee, supra note 19.

40 Art. 18 of the ICC statute, “Preliminary Rulings Regarding Admissibility”.

41 “Filibustering Tactics Stall Negotiations,” Terra Viva, supra note 22, July 1, 1998.

42 UNDoC.A/CONF.183/C.1/L.53 (July 6, 1998).

43 UN Doc. A/CONF.183/C.1/L.59 (July 10, 1998).

44 UNDoc.A/Conf.183/C.1/L.53 (July 6, 1998).

45 See under text heading “The Context.”

46 Art. 8(b) (iii) of the ICC statute.

47 UN Doc. A/Conf.183/C.1/L.59, Part 2, Article 5.

48 Protocols Additional to the Geneva Conventions of Aug. 12,1949, Part 1, Arts. 1(1),90.

49 Bureau proposal, A/Conf. 183/C.1/L.59, Art. 5 quater, C (d).

50 Bureau proposal A/Conf. 183/C. 1 /L.5g, Art. 5 quater, D. See also infra note 64.

51 It was understood that the statute should reflect crimes existing under customary international law, rather than create new crimes: Report of the Preparatory Committee, supra note 19.

52 Bureau proposal, A/Conf. 183/C. 1/L.5g, Art. 5 quater, B(o)(vi).

53 Bureau proposal, A/Conf. 183/C. 1 /L.59, Art. 5 bis and Art. 5 ter.

54 Report of the Preparatory Committee, supra note 19.

55 Bureau proposal, A/Conf.183/C.1/L.59, Art. xx. The elements of crimes will be developed in the upcoming meetings of the Preparatory Commission. These elements will assist the court to interpret and apply Arts. 6, 7, and 8. They shall be adopted by a two-thirds majority of the members of the Assembly of States Parties: Art. g of the ICC statute.

56 See, e.g., the proposal by India discussed under text heading “The Final Package,” infra. In the Bureau proposal, the role of the Security Council provision no longer contained options pertaining to aggression, because they were subject to the negotiations on the definition of that crime.

57 Bureau proposal, A/Conf. 183/C.1/L.59, Art. 12, Option 2.

58 Bureau proposal, A/Conf. 183/C.1/L.59, Art. 7 bis.

59 Bureau discussion paper, A/Conf.183/C.l/L.53, Art. 7, Options 2,3.

60 Bureau proposal, A/Conf. 183/C. 1/L.59, Art. 7, Options 1,2, and 3.

61 Under the July 15, 1998 headline of “High Noon,” Terra Viva, supra note 22, wrote:

Like the lone sheriff in a classic Western, chairman Philippe Kirsch is conducting a desperate but determined search for a critical number of deputies to back his attempt to gather support for a compromise Statute for an International Criminal Court (ICC) before the Wednesday “high noon” deadline of sorts, set for the Committee of the Whole to complete its work.

62 Rules 34 and 52 of the Conference Rules of Procedure. See UN Doc. A/CONF. 183/Add.2 (Apr. 14, 1998).

63 Art. 5(2). With respect to “treaty crimes” such as terrorism and drug trafficking, there was no agreement to include a reference in the statute. Instead, a resolution of the conference notes the possibility that such crimes might be added in the future by amendment: A/Conf. 183/10*, Annex I, E.

64 Art. 8, para. 1.

65 Now appearing in Art. 8, subparas. 2(d) and (f) of the ICC statute. Para. 2(d) states “Paragraph 2(c) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature.”

Paragraph 2 (f) states that “Paragraph 2 (e) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. It applies to armed conflicts that take place in the territory of a State when there is a protracted armed conflict between governmental authorities and organized armed groups or between such groups.” See under text heading, “Issues Relating to Crimes.”

66 “NAM Won’t Budge on Aggression, Nukes”: Terra Viva, supra note 22, July 15, 1998.

67 Art. 8(2)(b)(xx) of the ICC statute allows the addition of weapons that “are included in an annex to this Statute, by an amendment in accordance with the relevant provisions set forth in Articles 121 and 123.”

68 Ibid., Art. 124.

69 These are the best-established bases for the exercise of criminal jurisdiction, as may be seen in a review of relevant conventions, such as the Convention on the Prevention and Punishment of the Crime of Genocide, the Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment, the International Convention against the Taking of Hostages, the International Convention for the Suppression of Terrorist Bombings, the Inter-American Convention against Corruption, and the Convention on the Prevention and Punishment of Crime against Internationally Protected Persons, Including Diplomatic Agents.

70 Art. 17 (1) (a) of the ICC statute.

71 Ibid., Art. 16.

72 Ibid., Art. 120.

73 Art. 123 of the ICC statute contemplates a review conference seven years after the entry into force of the ICC statute.

74 See Art. 123, ibid. See also UN Doc A/CONF. 183/10, Annex I.

75 Rule 30 of the Rules of Procedure of the Conference required, as a general rule, that proposals be circulated not later than the day preceding the meeting at which it was considered: UN Doc. A/CONF. 183/2/Add.2.

76 In UN Doc. A/Gonf.183/C.1/L.72, India submitted a number of revisions to the ICC statute, to limit the role of the Security Council and introduce “nuclear weapons” as a prohibited weapon, without success. In addition, the United States attempted to include revisions to restrict the ICC’s jurisdiction under A/Conf. 183/C. 1/L.90, which were also rejected overwhelmingly by the Committee of the Whole.

77 “A Court Is Born: Applause, Jubilation as US and Indian Amendments are Rejected,” Terra Viva, supra note 22, July 18, 1998.

78 “Alliances Cut Through North-South Divide,” Terra Viva, supra note 22,June 22, 1998.

79 International Criminal Court: Some Questions and Answers, 2 (UN Department of Public Information), available at http://www.un.org/icc.

80 Resolution F in the Annex to the Conference Final Act, UN Doc. A/CONF. 183 /10, provides a non-exhaustive list of instruments to be developed by the Preparatory Commission to facilitate the establishment and operation of the Court.

The Birth of the International Criminal Court: The 1998 Rome Conference

  • Philippe Kirsch and John T. Holmes

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