2. Hereafter referred to either as ‘ICC’ or ‘the Court’.

3. See Art. 1 of the Rome Statute of the International Criminal Court, UN Doc. A/CONF. 183/C.1/L.76/Add.1.

4. Statement of the UN Secretary-General Kofi Annan at the closing ceremony of the Rome Conference, 18 July 1998.

5. The definition of the crime of genocide is similar to the definition of genocide adopted in Art. 2 of the 1948 Genocide Convention. See Art. 6 of the Statute of the Court, UN Doc. A/CONF. 183/C. 1/L.76/ Add.2.

6. Nowadays, a great majority of armed conflicts are of internal character, and for the first time an international treaty is clearly establishing international individual criminal responsibility for serious violations of the laws of war in internal armed conflicts.

7. According to resolution F, adopted by the Conference in the annex to the Statute, the preparatory commission for the International Criminal Court will have as its first mission to prepare proposals for a provision on aggression, including the definition and elements of crimes of aggression. The proposals will be later on submitted to the Assembly of States Parties.

Consensus was not reached either for the inclusion within the jurisdiction of the Court of the crimes of terrorism, or for the crime of international trafficking of illegal drugs. The crime of terrorism was defined on p. 27 of the draft Statute. Later on, Algeria, India, Sri Lanka and Turkey proposed to include within the definition of crimes against humanity the crime of terrorism. Both proposals to include terrorism as a separate crime, or as a crime against humanity, were rejected. See UN Doc. A/CONF.183/C.1/L.27.

The draft Statute embodied a proposal to include crimes involving the illicit traffic in narcotic drugs and psychotropic substances, on p. 28 of the draft Statute. During the Conference, Barbados, Dominica, Jamaica and Trinidad and Tobago proposed a new definition of the crime, see UN Doc. A/CONF. 183/L.48. No consensus could be reached as to the inclusion of this crime within the jurisdiction of the Court See resolution E adopted in the annex to the Statute.

8. See the explanations of votes addressed to the plenary committee of the Conference on 17 July 1998 by India, China and the USA. Available on the internet site http://www.un.org/icc.

India's rejection of the Statute lay as well in its opposition to the role given by the Statute to the Security Council. Before the adoption of the Statute by a vote of the plenary committee, India had presented two final amendments to the draft Statute. The first one called for the deletion of all reference and powers given to the Security Council. See UN Doc. A/CONF.183/C.1/L.95. The second amendment called for the inclusion of weapons of mass destruction, i.e., nuclear, chemical and biological weapons, in the list of war crimes. A vote on these amendments was taken in the committee of the whole on 17 July 1998, 114 states voted against, 16 for and 20 states abstained. This vote reflected more states’ willingness to adopt the Statute as it was, than a real opposition to these amendments. This was especially the case for the inclusion within the jurisdiction of the Court of the use of nuclear and biological weapons as war crimes.

9. In his opening statement to the Conference, the Head of the Indian Delegation argued that: ‘the ICC should be based on the principles of complementarity, State sovereignty, and non-intervention in internal affairs of States, and that its statute should be such as to attract the widest acceptability of States, with State consent as the cornerstone of the ICC jurisdiction.’ Similarly, the Chinese representative said: ‘The Court can exercise its jurisdiction only with the consent of the countries concerned and should refrain from exercising such jurisdiction when a case is already being investigated, prosecuted or tried by a relevant country.’ See the opening statements of India and China to the Conference, supra n. 8.

10. See the Preamble of the Statute.

11. Art. 1 of the Statute of the Court.

12. See Art. 9 further option, on p. 33 of the draft Statute, English version. This proposal was first presented at the last preparatory committee before the Conference, UN Doc. A/AC.249/1998/DP.2, 23 March 1998.

13. Idem, at p. 2.

14. Extract from the German address on jurisdiction to the committee of the whole, 19 June 1998.

15. During the first discussion on jurisdiction, the German proposal received explicit support from 12 out of 54 states who spoke that day: Belgium, Denmark, Jordan, the Czech Republic, Ukraine, Greece, the Netherlands, New Zealand, Italy, Portugal, and Ivory Coast Later on, the discussion papers of the committee of the whole dropped that option (see UN Doc. A/CONF.183/C.1/L.53 and L.59). During the debate on jurisdiction of 9 July 1998, 23 states expressed their dismay that universal jurisdiction did not appear anymore as a feasible option for the jurisdiction of the Court.

16. Extracts from the original proposal which was tabled during the last preparatory committee in 1998, see UN Doc. A/AC.249/1998/WG.3/DP.1. It appears as further option Arts. 6 and 7 of the draft Statute, p. 38 of the English version.

17. This proposal was introduced by the UK in its first statement on jurisdiction, 19 June 1998.

18. During the first debate on jurisdiction of 19 June 1998, 13 states expressed their support for the original option presented by the UK. Later on, states had the opportunity to express their position on jurisdiction twice, on 8 and 13 July 1998. In response to the question of which states should be party to the Statute or have accepted the Court's jurisdiction, 14 states supported the UK approach requiring consents of both the territorial state and the custodial state. These states were: Japan, Columbia, Sudan, China, India, the Russian Federation, Afghanistan, Pakistan, Iran, Oman, Egypt, Jamaica, the UK and Nigeria.

19. Art. 7 option 2 of the draft Statute, p. 31 of the English version. The chapeau of this option reads: ‘… The court may exercise its jurisdiction over a person if the following State(s) has/have accepted the exercise of the jurisdiction of the Court with respect to a case in question which is the subject of a complaint lodged by a State.’

20. During the first debate on jurisdiction, Russia, Iraq, Vietnam, Algeria, Cuba, Libya, Lebanon, Egypt, Nigeria, Afghanistan, Turkey, Mexico, Syria, China and Tunisia expressed support for a combination of the consent of several states presented in this option. They later opted mainly for the UK proposal.

21. See UN Doc. A/CONF.183/C.1/L.6.

22. States which supported the Korean proposal, once the German one was dropped, were: Australia, Canada, Trinidad and Tobago, Argentina, Sierra Leone, Azerbaidjan, the Netherlands, Liechtenstein, New Zealand, Brazil, Chile, Ethiopia, South Africa, Namibia, Guinea, Denmark, Malta, Romania, Swaziland, Mali, Jordan, Republic of Korea, Guinea-Bissau, Tanzania, Venezuela, Germany, Sweden, Belgium, Portugal, Austria, Senegal, Costa Rica, Burundi, Lesotho, Slovenia, Slovakia, Ireland, Ukraine, Greece, Cameroon, Finland, Djibouti, Spain, Italy, Thailand, Malawi, Norway, Botswana, Togo, Czech Republic, Poland, Lithuania, Ecuador, Kuwait, Congo, Bosnia-Herzegovina, Qatar, Mexico, San Marino, Kenya, Croatia, Hungary, Ethiopia, Burkina-Fasso, Andorra, Estonia, Ghana, Madagascar, Nicaragua, Peru, Samoa, Solomon Islands, Swaziland, Libya, Syria, Zimbabwe, Armenia, Mozambique, Switzerland and Burundi.

23. The USA first tabled a proposal which required the consent of the state of nationality of the accused, before the Court could exercise its jurisdiction over crimes against humanity and war crimes. See Art. 7 option 3 on p. 11 of UN Doc. A/CONF.183/C.1/L.59. Later on, the USA proposed the cumulative consent of the territorial state and the state of nationality of the accused. See UN Doc. A/CONF.183/C.1/L.70, see as well UN Doc. A/CONF.183/C.1/L.90.

24. A small minority of 10 states out of 104, which took a position on jurisdiction on 8 and 13 July 1998, supported either the US proposal or a combination between the US and the UK proposal, asking for the three-fold consent of: the territorial state, the custodial state and the state of nationality of the accused. These 10 states were: Algeria, Gabon, Turkey, Israel, Uruguay, Sri Lanka, Vietnam, Indonesia, USA and France.

25. Art. 12.2.

26. It is interesting to note that Singapore explained its abstention for the overall vote of the Statute by expressing its dismay at the ‘strange fix for the question of jurisdiction which has appeared for the first time at the last minutes of the conference.’ See explanatory statement of Singapore on the vote of the Statute, 17 July 1998, available on internet site http://www.un.org/icc/pressrel.

27. Art. 12.3.

28. Similarly, notwithstanding the title of Art. 12, Art. 12.1 should not be understood as a precondition to the exercise of jurisdiction by the Court in relation to Art. 13b). The Statute seems to give to the Security Council the power to refer to the Court a situation in which one or more crimes appears to have been committed, even if the interested states have not accepted the jurisdiction of the Court with respect to the crimes referred to in Art. 5.

29. Art. 17 of the Statute lays down the criteria that the Court will have to take into account in order to determine unwillingness or inability of states to prosecute the perpetrators of genocide, crimes against humanity or war crimes.

30. A great number of states characterised Art. 17 as a delicate compromise. This was the case of Canada, Senegal, Cuba, Switzerland and Brazil among others, during the session of the committee of the whole in the evening of 22 June 1998.

31. Following a Mexican proposal, the words ‘undue delay’, present in the draft Statute, were substituted for the words now in the Statute ‘unjustified delay’ in Art. 17.2b). Similarly, the words ‘total or partial collapse of national judicial system’ present in the draft Statute, were changed for ‘total or substantial collapse’ in Art. 17.3. And finally, in the chapeau of Art. 17.2 reference to the principles of due process ‘recognised by international law’ has been added when determining the concept of unwillingness. These amendments were proposed by Mexico in the document UN Doc. A/CONF. 183/C. 1/L. 14, and supported by Cuba, Brazil, Peru and Egypt among others.

Other proposals, first by China, to add within Art. 17.1b) and c) ‘inconsistent with its national rules of proceedings’, and then a proposal by Uruguay, to add the word ‘unjustifiably’ after the words is ‘unwilling’ in Art. 17.1.a), and the word ‘unjustified’ before the word ‘purpose’ in Art. 17.2a), were not taken into account in the final text See documents UN Doc. A/CONF/183./C.1/L.15 and L.23.

32. The vast majority of states mentioned the importance of this principle in their opening address. See opening statements on 15–16–17 and 18 of July 1998, supra n. 8. Later, Canada, Belgium, Chile, Portugal, the USA, Senegal, Israel, Venezuela, Indonesia and others re-stated their support for the existing Article on admissibility.

33. See the explanation of the Indian vote on the adoption of the Statute of the International Criminal Court, 17 July 1998, supra n. 8.

34. Art. 17.3.

35. Art. 17.2.

36. Art. 17.1.

37. Art. 17.1.b) reads:… a case is inadmissible where … 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 or inability of the State genuinely to prosecute.’

38. Art. 13 of the Statute reads:

‘The Court may exercise its jurisdiction with respect to a crime referred to in Article 5 of the statute if:

– A situation in which one or more of such crimes appears to have been committed is referred to the prosecutor by a State Party

– 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 die Charter of the United Nations.

– The prosecutor has initiated an investigation in respect of such a crime in accordance with Article 15.’

39. Few states were against granting the Security Council such a power. They did not want to give any role to the Council in the Statute. For states like India, the power to refer a situation to the Court was ‘unnecessary’ and would be ‘an attempt to influence justice’. See the explanation of the Indian vote on the adoption of the Statute, as well as UN Doc. A/CONF.183/C.1/L.72.

40. This proposal was introduced by Jordan during debates in the committee of the whole, 22 June 1998, and was supported by Egypt, Spain, Mexico and Syria, among others.

41. This proposal was put forward by Chile and Brazil.

42. In his explanation of the Indian vote on the adoption of the Statute, the Head of the Indian Delegation said: ‘It would imply that some members of the Council do not plan to accede to the ICC, will not accept the obligations imposed by the statute, but want a privilege to refer cases to it’ Furthermore, according to the Indian Delegation, this enables, the permanent five members of the Security Council, which may not be party to the Statute, to impose obligations on non-parties. It is true that there is no precondition of jurisdiction when a situation is referred by the Council under Chapter VII. No consent is necessary for the Court to exercise its jurisdiction, therefore non-parties may bind through the Court other non-parties. This power belongs to the Council in any event under Chapter VII, and has already been used by the Council for the creation of the Tribunals for the former Yugoslavia and Rwanda. Using the newly created judicial institution seems, in any event, a better solution than creating another ad hoc criminal tribunal.

43. Timothy L. H. McCormack and Gerry J. Simpson commented that: ‘The reasons for giving the Council this role in the exercise of criminal jurisdiction is obvious … Both the Secretariat and the General Assembly must defer to it in such matters. It is also the case that the Security Council has established itself in the field of international criminal law with its creation of tribunals for the Former Yugoslavia and Rwanda’. See McCormack, T. L. H. and Simpson, G. J., ‘A new International Criminal Law Regime?’, 42 NILR (1995) pp. 177–206 at p. 195.CrossRefGoogle Scholar

44. Art. 23.3 of the International Law Commission draft provided: ‘No prosecution may be commenced under this statute arising from a situation which is being dealt with by the Security Council as a threat to or a breach of the peace, an act of aggression under Chapter VII of the Charter, unless the Security Council otherwise decides.’ This Article was supported during the sessions of the preparatory committee by the permanent members of the Security Council. C. Keith Hall reports: ‘France argued that the Security Council should screen all State complaints to see if they involve a situation of threat to or a breach of international peace and security. The USA argued that no State complaint concerning a situation that the Security Council was actively considering could be referred to the Court until the Council agreed.’ Hall, C. Keith, ‘the First and Second Sessions of the UN Preparatory Committee on the Establishment of an International Criminal Court’, 91 AJIL (1997) pp. 177–187 at p. 182.CrossRefGoogle Scholar

45. Keith Hall commented that this provision would enable ‘any permanent member to veto a Security Council resolution authorising a prosecution.’ See Hall, C. Keith, ‘The Third and Fourth Sessions of the UN Preparatory Committee on the Establishment of an International Criminal Court’, 92 AJIL (1998) pp. 124–133 at p. 131. See as well McCormack and Simpson, loc. cit. n. 43.CrossRefGoogle Scholar

46. Art. 16 of the Statute reads: ‘No investigation or prosecution may be commenced or proceeded with under the statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.’ This proposal was originally put forward by Singapore during the preparatory committee sessions. New Zealand, among other states, called specifically for the mention that such a request needed to be taken openly by the Security Council by a resolution under Chapter VII of the UN Charter.

47. See option 2 of Art. 10 in UN Doc. A/CONF.183/C.1/L.59, p. 13. This proposal was put forward by the USA.

48. The US Delegation expressed its position on 13 July 1998 during a debate on this issue: ‘Option 1 of Article 10 also shows promise but only if it does not purport to dictate a time period for the effectiveness of a resolution by the Security Council. We do not believe such a limitation can be imposed by a treaty separate from the UN Charter.’

49. Sierra Leone proposed a time period of 6 months instead of 12.

50. Some of these states voted against the Statute of the Court in pursuance of their opposition to the role given to the Security Council. India, in its explanation of the vote stated: ‘The statute violates this fundamental principle of international law by conferring on the Council a power which it does not have under the Charter and which it cannot and should not be given by any other instrument.’ Supra n. 8.

51. See Art. 10.7 option 1 of the draft Statute, UN Doc. A/CONF.183/2/Add.1, p. 35 of the English version.

52. If a definition of the crime of aggression is agreed upon, the Court will be able to exercise its jurisdiction over crimes of aggression. In this regard, a compromise over the role of the Security Council in relation to aggression will need to be found.

53. In practice, the Security Council has never made the determination that a state had committed an act of aggression.

54. During the debates, a number of states like Syria, Iran, India, Nigeria or Pakistan have expressed their opposition to a pre-determination of an act of aggression by the Council before the Court may prosecute an act of aggression. Some states argued that if the Security Council was silent, then the Court could go ahead and investigate an act of aggression.

55. Declaration of Russia during the debates on the role of the prosecutor in the committee of the whole, 22 June 1998. Similarly, states including Iraq, argued that the prosecutor will suffer from political influences.

56. Israel specially mentioned this argument during the debates on the role of the prosecutor on 22 June 1998. Similarly, during the same debate, the USA argued that the ‘volume of complaints will expand significantly, including those that will prove to be inappropriate bases for prosecution.’ The prosecutor will have to decline some complaints and this will ‘undermine perceptions of his or her impartiality and subject the prosecutor to incessant criticism by groups and individuals who disagree with his choices.’

During the Conference, states had the opportunity to take a position regarding the proprio motu power of the prosecutor in three instances, states which opposed such a power were: Bahrain, China, India, Algeria, Pakistan, Turkey, Kenya, Yemen, Iraq, Indonesia, Sri Lanka, Nigeria, Saudi Arabia, Bangladesh, Sudan, Iran, the USA, Congo, Egypt, United Arab Emirates, Libya, and Cuba, among others.

57. Extracts from a paper distributed by the US Delegation on 22 June 1998, on ‘The concerns of the US regarding the proposal for a proprio motu prosecutor’.

58. This text was originally an Argentinean and German proposal, which hoped to bridge the gap between opponents and strong supporters of a free and independent prosecutor.

59. Art. 15.3.

60. Art. 15.4.

61. Art. 15.5.

62. See Art. 12.1.

63. Inherent jurisdiction or opt in mechanisms for certain crimes were the two main options present in the draft Statute UN Doc. A/CONF.183/2/Add.1. Automatic or inherent jurisdiction was proposed by the UK in Art. 7.1, further option, of the draft Statute: ‘A State which becomes party to the statute thereby accepts the jurisdiction of the Court with respect to all core crimes.’ Art. 9 option 2 on p. 33 of the draft Statute was the ’à la carte’ option or opt in regime, by which a declaration may be lodged with the depository, stating that the state accepts the jurisdiction of the Court with respect to all or certain crimes only. In three instances, states had the opportunity to express themselves on their preferred option for the jurisdiction of the Court. During the opening debate on this issue, out of 46 states who took a position on this matter, 14 preferred the opt in mechanism leaving the choice to any State Party to choose which crimes the Court will have jurisdiction over. 32 favoured the inherent or automatic jurisdiction.

On 8 July 1998, states had the possibility to take a position on the first discussion paper issued by the committee of the whole (UN Doc. A/CONF.183/C.1/L.53). On that day, 97 states expressed their views with 70 states reaffirming their support for inherent or automatic jurisdiction.

Finally, when states expressed their views on the second discussion paper from the committee of the whole (UN Doc. A/CONF.183/C.1/L.59) 64 states were for automatic jurisdiction and 21 for the opt in or ’à la carte’ system.

64. Certain states, including India, France and the USA, had expressed the wish to see the categories of crimes against humanity and of war crimes subject to an opt in regime. See the US proposal for an opt in protocol, UN Doc. A/CONF.183/C.1/L.90.

65. Art. 124 of the Statute. This provision appeared for the first time on the last day of the Conference, in the package deal which was submitted to a vote and finally adopted as the Rome Statute for an ICC. This provision assured the support of states like France for the Statute.

66. The USA is for example concerned that its servicemen abroad may be tried in front of the ICC. If US soldiers serve in peacekeeping forces for example, it seems pretty improbable that they can commit genocide or war crimes, as they are even not party in a conflict.

67. This consequence of both Arts. 12 and 124 was criticised by the US Delegation, as a State Party can protect its own soldiers from being tried for war crimes in front of the ICC, whereas a state which does not become party to the Statute may find its own soldiers tried by the Court.

68. See Art. 19.

69. The USA, China and Israel were among the states which voted against the Statute, Sri Lanka, Turkey, Singapore were among the states which abstained. See their explanation of votes, supra n. 8.

70. Furthermore, in their explanation of votes, these three states declared that one of the reasons for their refusal of the Statute lay in their objection to Art. 12 of the Treaty.

71. Statement of the US Delegation on 13 July 1998 about the alternative jurisdictional regime which was embodied in the draft Statute. For the US, the North Korean proposal and the one finally adopted in Art. 12 effectively incorporates universal jurisdiction and allows the Court to exercise jurisdiction over the nationals and officials acts of states not party to the Statute.

72. Supra n. 8.

73. Under the Statute, the state which chooses not to be party to the Court’s jurisdiction, is not bound to co-operate with the Court. We could ask ourselves if the Security Council may under Chapter VII change this situation. Such a possibility is not embodied in the Statute, but the Council could, using its power to maintain peace and security, ask a state to co-operate with the Court.

74. These crimes are unanimously qualified as crimes under general international law and were treated as such by the International Law Commission in its draft Statute for a permanent International Criminal Court. See Art. 20 of the draft Statute of the ICC by the International Law Commission, Report of the International Law Commission on the work of its forty-sixth session. UN GAOR, 49th session, Supp. No 10, at 29–40, UN Doc. /49/10, 1994.

75. This Article was first tabled by the USA on 25 March 1998 during the last preparatory committee. It was redrafted and appears as proposal UN Doc. A/CONF.183/C.1/L.25.

76. This obligation of notification is not applicable when a situation is referred by the Security Council to the Court. See Art. 18.1

77. According to Art. 18.3 and 18.5, once the prosecutor has deferred an investigation because a state was trying the accused, he may request that the state concerned periodically inform the prosecutor of the progress of its investigations. Furthermore, the prosecutor’s deferral to a state's investigation shall be open to review by the prosecutor six months after the date of deferral or at any time when there has been a significant change of circumstances based on the state's unwillingness or inability genuinely to carry out investigations.

78. See Art. 19.2 and 19.4.

79. Under the principle of universal jurisdiction, states have the right to try the perpetrators of war crimes, crimes against humanity or genocide. Furthermore, under the Geneva Conventions on the laws of armed conflicts, states are under the obligation to try or extradite the perpetrators of grave breaches. 188 states are today party to the Geneva Conventions of 1949.

80. There is one exception to this proposition: a state may find the Court exercising its jurisdiction over a situation which happened on its soil, if such a situation has been referred to the Court by the Security Council under Chapter VII of the UN Charter. Such referral requires the adoption of a Chapter VII resolution with the positive vote of 9 members of the Security Council and the absence of a veto.

81. We have already mentioned that nowadays, a great number of conflicts where genocide, crimes against humanity or war crimes are committed, are of internal character. The territorial state will therefore often be the state of nationality of the accused.

82. The only case where the consent of states will not be necessary, is the situation where the Security Council refers a situation to the Court In that case, the Court may effectively have the possibility to fight unwillingness and inability of national jurisdictions.

83. See Art. 15.3 of the Statute, whereby the prosecutor shall submit to the pre-trial chamber a request for authorisation of an investigation, when he initiates investigations proprio motu. See Art. 17 for the grounds of admissibility – as well as Arts. 18 and 19 on challenges to the jurisdiction of the Court or inadmissibility of a case. Alternatively, if the Statute is widely ratified, consent of territorial state will not be required and the ICC could exercise its jurisdiction more frequently.

84. See Arts. 121 to 123.