1. UN Secretary-General Kofi Annan at the ceremony celebrating the adoption of the Statute of the International Criminal Court, 18 07 1998, Rome.Google Scholar

2. Hereafter “the Court”. The International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda are hereafter referred to as ICTY and ICTR, respectively.

3. The Statute was adopted by the UN Sponsored Diplomatic Conference in Rome on 17 July 1998 by 120 States voting in favour, seven against and 21 abstaining.

4. see Crawford, J., “The ILC's Draft Statute for an International Criminal Tribunal” (1994) 88 A.J.I.L. 140, 141, and citations contained therein.Google Scholar

5. The most active UN principal organ in this area has been the General Assembly and its subsidiary organ the International Law Commission, which formulated a Draft Statute of an International Criminal Court The Assembly in its Res.44/39 of 4 Dec. 1989 requested the ILC to address the question of establishing an international criminal court; in Res.45/41 of 28 Nov. 1990 and 46/54 of 9 Dec. 1991 invited the ILC to consider further and analyse the issues concerning the question of an international criminal jurisdiction, including the question of establishing an international criminal court; and in Res.47/33 of 25 Nov. 1992 and 48/31 of 9 Dec. 1993 the Assembly requested the ILC to formulate the draft statute for an international criminal court as a matter of priority. Subsequently the General Assembly, in its Res.50/46 of 11 Dec. 1995, decided to establish a Preparatory Committee on the establishment of an International Criminal Court to discuss the major substantive and administrative issues arising out of the Draft Statute prepared by the ILC in 1994 and to draft texts with a view to preparing a widely acceptable consolidated text of a convention for an international criminal court as a next step towards consideration by a conference of plenipotentiaries. The Preparatory Committee met from 25 Mar. to 12 Apr. and from 12 to 30 Aug. 1996, during which time it discussed further the issues arising out of the Draft Statute and began preparing a widely acceptable consolidated text of a convention for an international criminal court.

6. Crawford, op. cit. supra n.4, at pp.141–142.Google Scholar

7. See infra Section D1.

8. There is, moreover, brief consideration of the work of the ILC and the Preparatory Committee in formulating the Statute and the proposals by States at the Rome Conference.

9. These groupings are, according to Art.34(a) and (b), the Presidency, an Appeals Division, a Trial Division and a Pre-Trial Division. Art.38(3) specifies that the Presidency comprises the President of the Court together with the First and Second Vice-Presidents, who are all elected, according to Art.38(1) by an absolute majority of the judges. Art.38(3) specifies that the Presidency shall be responsible for the proper administration of the Court (with the exception of the Office of the Prosecutor) and the other functions conferred upon it in accordance with the Statute. These functions include: proposing to State parties that there be an increase in the number of judges from the specified 18 (Art.36(1)), if it considers this necessary (Art.36(2)); the assignment of judges into the Appeals Division, the Trial Division and the Pre-Trial Division (Art.39); excusing a judge, at his or her request, from the exercise of a function under the Statute (Art.41(1)); and excusing the prosecutor or deputy prosecutor at his or her request from acting in a particular case (Art.42(6)).

10. Art.48(1) specifies that the Court shall enjoy in the territory of each State party to the Statute such privileges and immunities as are necessary for the fulfilment of its purposes. In the case of the deputy registrar, the staff of the Office of the Prosecutor, and the staff of the Registry, Art.48(3) stipulates that they “shall enjoy the privileges and immunities and facilities necessary for the performance of their functions”. Additional privileges and immunities are provided in Art.48(2) for the judges, the prosecutor, the deputy prosecutors and the registrar, who “shall, when engaged on or with respect to the business of the Court, enjoy the same privileges and immunities as are accorded to heads of diplomatic missions and shall, after the expiry of their terms of office, continue to be accorded immunity from legal process of every kind in respect of words spoken or written and acts performed by them in their official capacity”. The Statute also provides in Art.48(4) that “Counsel, experts, witnesses … shall be accorded such treatment as is necessary for the proper functioning of the Court, in accordance with the agreement on the privileges and immunities of the Court.” Annex 1(F) of the Rome Final Act stipulates the preparation of a draft agreement on the privileges and immunities of the Court as one of the functions of the Preparatory Commission of the Court. On the other functions of this Preparatory Commission, see infra n.12.

11. Once established, Art.3 of the Statute stipulates that the seat of the Court shall be in The Hague.

12. The precise period is specified in Art. 126(1) as “the first day of the month after the 60th day following the date of the deposit of the 60th instrument”. Annex 1(F) of the Final Act of the UN Conference which concluded the Statute provides for the establishment of a Preparatory Commission—made up of the States which have signed the Final Act and other invited States—which will have the objective of ensuring the coming into operation of the Court without delay and making the necessary arrangements for the commencement of its functions. In accordance with this objective, para.5 of Annex 1(F) specifies that the Preparatory Commission shall draft texts of, inter alia, the Rules of Procedure and Evidence; elements of the crimes; a relationship agreement between the Court and the UN; an agreement on the privileges and immunities of the Court; a budget for the first financial year, and the rules of procedure of the Assembly of States Parties. Para. 8 of Annex 1(F) states that the Commission is to remain in existence until the conclusion of the first meeting of the Assembly of States Parties, the body made up of States parties which, according to Art.112 of the Statute, exercises management oversight functions.

13. Art.120 states that no reservation may be made by States when ratifying the Statute. This is important to prevent the proliferation of different regimes governing the exercise by the Court of its jurisdiction vis-à-vis different States and their nationals. The question whether a particular interpretative declaration submitted by a State when ratifying the Statute is in fact a reservation is a decision which is within the sole discretion of the Court (on the distinction between an interpretative declaration and a reservation, see the case of Belilos v. Switzerland 88 I.L.R. 635). However, until the Statute enters into force and the Court is thus established, it will be for the Secretary-General, as depositary (Art.125), to decide whether a particular instrument submitted with an instrument of ratification is a reservation and as such cannot be accepted. In the case of dispute with the depositing State, the Secretary-General should circulate the suspect instrument to the other contracting States and even the negotiating States: see Art.77(1)(d) of the 1969 Vienna Convention on the Law of Treaties concerning the functions of the depositary.

14. As such, the temporal and geographical limitations which pertain to the ICTR and ICTY respectively do not apply in the context of the Court: see also Warbrick, C., “International Criminal Law” (1995) 44 I.C.L.Q. 466, 473.Google Scholar

15. On the nature of the possible relationship between the Court and the UN, see infra nn.30–32 and corresponding text.

16. For an exception, see infra n.23.

17. see Sarooshi, D., “The Powers of the United Nations International Criminal Tribunals” (1998) 2 Max Planck Yearbook U.N. Law 141, 149–150, and ICTY/ICTR Appeal Chamber cases cited therein.Google Scholar

18. Art.103 of the Charter provides: “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”

19. Sarooshi, op. cit. supra n.17, at p.150.Google Scholar

20. There is also a general obligation on States under Art.86 of the Statute to co-operate fully with the Court, which includes of course the prosecutor, in its investigation and prosecution of crimes within the jurisdiction of the Court. In the event of non-compliance by a State with such a request which prevents the Court from exercising its powers and functions under the Statute, the Court may make a finding to that effect and refer the matter to the Assembly of States Parties or, in the exceptional case where the Security Council referred the matter to the Court, to the Security Council (Art.87(7) of the Statute). The effectiveness of such a reference to the Assembly of States Parties has been correctly questioned on the basis that “the Assembly of States Parties given its size and its low frequency of meetings would not function as an effective organ to sanction incidents of non-cooperation” (Zimmerman, A., “The Creation of a Permanent International Criminal Court” (1998) 2 Max Planck Yearbook U.N. Law 169, 223). This is to be contrasted with the ICTY/ICTR where there is provision for recourse to the Security Council in all cases of non-compliance with a warrant of arrest or transfer order by a State. (This is in accordance with rr.59 and 61(E) of the Rules of Procedure and Evidence of the ICTY.) This recourse to the enforcement authority of the Security Council in all cases of non-compliance is lacking in the case of the Court.Google Scholar

21. Moreover, in the context of national laws there is provision in Art.94 of the Statute, which is in Part 9, for the requested State to postpone the execution of the request for a period of time agreed upon with the Court if the immediate execution of a request would interfere with an ongoing investigation or prosecution of a case different from that to which the request relates. This provision seems innocuous enough in theory, but in practice it may well serve as a legal pretext for an intransigent State to delay execution of a request for arrest Clarity in terms of the powers of the Court in this area would have been more desirable especially in the light of the experience of the ICTY and the continued non-cooperation of several States for a considerable period with the Tribunal by hampering requests for investigation and not executing warrants for arrest: see e.g. the letter from the ICTY President Gabrielle Kirk McDonald to the Security Council of 9 09 1998.Google Scholar

22. This is in clear contrast to r.58 of the Rules of Procedure and Evidence of the ICTY, which provides: “The obligations laid down in Article 29 of the Statute shall prevail over any legal impediment to the surrender or transfer of the accused or of a witness to the Tribunal which may exist under the national law or extradition treaties of the State concerned.”

23. This is subject to an exception in the case where a State which is a party to the Statute makes the same request as the Court for the extradition of a person from the requested State for the same conduct which forms the basis of the crime for which the Court seeks the person's surrender in casu, Art.90(2) provides that the requested State “shall” in general terms give priority to the request from the Court.

24. In the report of the Preparatory Committee it is stated in respect of the irrelevance of official position in a case before the Court “Taking into account the precedents of the Nuremberg, Tokyo, Yugoslavia and Rwanda tribunals, there was support for the Statute to disallow any plea of official position as Head of State or Government or as a responsible government official; such official position should not relieve an accused of criminal responsibility. Some delegations thought that this issue could be included in relation to ‘defences’. The opinion was also expressed that further consideration would be useful on the question of diplomatic or other immunity from arrest and other procedural measures taken by or on behalf of the Court”: Report of the Preparatory Committee on the establishment of an International Criminal Court, Vol. 1 (Proceedings of the Preparatory Committee during 03–04 and 08 1996)Google Scholar, G.A., 51st Sess., Supp. No.22, A/51/22, 1996, para.193. The precedents referred to in this passage are Art.7 of the Charter of the International Military Tribunal for the trial of war criminals at Nuremberg, Art.7(2) of the ICTY Statute and Art.6(2) of the ICTR Statute.

25. Such an obligation, even if it were to exist, could apply only to a State party to the Statute, since the treaty cannot bind States which are not a party, see Art.34 of the 1969 Vienna Convention on the Law of Treaties.

26. R. v. Bow Street Stipendiary Magistrate and others ex p. Pinochet Ugarte (Amnesty International and others intervening) [1998] 4 All E.R. 897Google Scholar, see the opinions of Lords Nicholls, Steyn and Hoffmann. See in particular Lord Steyn, idem, pp.945–946. The judgment was, however, vacated by the House of Lords on 17 Dec. 1998; see Fox, H., “The First Pinochet Case: Immunity of a Former Head of State” (1999) 48 I.C.L.Q. 207. After the second hearing of the Appellate Committee of the House of Lords in this case, there was a majority decision of six Law Lords to one (Lord Goff dissenting) that Pinochet is not entitled to immunity for the alleged charges of torture and conspiracy to commit torture. Lord Browne-Wilkinson stated in the House of Lords the proposition common to the majority “that torture is an international crime over which international law and the parties to the Torture Convention have given universal jurisdiction to all courts wherever the torture occurs. A former head of state cannot show that to commit an international crime is to perform a function which international law protects by giving immunity” (Judicial Business: Report of the Appellate Committee in the Cause: R. v. Bartle and the Commissioner of Police for the Metropolis and others ex p. Pinochet, House of Lords, Wednesday 24 March 1999, Lord Browne-Wilkinson). However, it must be noted that the complementarity provisions of the Court's Statute would mean that if such a case in the future were to be referred to the Court it would in all probability be found inadmissible, since it was the subject of domestic investigation and prosecution; in casu Spain, the State which had requested extradition of Pinochet from the UK. On the complementarity provisions see infra Section C.Google Scholar

27. This provision is part of the complementarity provisions in the Statute: see infra Section C.

28. The other exceptions to the operation of Art.17(1) which are specified in Art.17(2) are as follows: “(b)[where] [t]here has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice; (c) [where] [t]he proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice”.

29. I.C.J. Rep. 1962, 162.Google Scholar

30. This would require compliance with the modalities specified in Art.63 of the UN Charter.

31. UN Juridical Yearbook (1976), p.200Google Scholar. For further examples and analysis of this type of UN organ, see Sarooshi, D., “The Legal Framework Governing United Nations Subsidiary Organs” (1996) 67 B.Y.I.L. 413, 433–434.Google Scholar

32. Ibid. The Court could not, however, be a UN subsidiary organ since its establishment, mandate and duration are all determined by its Statute whereas a UN subsidiary organ is subject, in respect of these issues, to the authority and control of its principal organ: Sarooshi, idem, pp.432–458: cf. in the case of the Court, for example, the fact that its judges are to be elected in accordance with Art.36 of its Statute.

33. The meaning of unwillingness or inability in this context has been discussed above: see supra nn.27–28 and corresponding text. The difficulty with these provisions in practice is that it may be very difficult for the prosecutor to obtain evidence as to the adequacy of the national proceedings especially since it is precisely the State which is challenging the prosecutor's investigations which holds this evidence.

34. E.g. Art.9 of the ICTY Statute stipulates that although the Tribunal and national courts have concurrent jurisdiction to prosecute persons for the crimes in the ICTY Statute, where there is a question of primacy the ICTY has primacy over national courts, and, moreover, that at any stage of the procedure, the Tribunal may formally request national courts to defer to its primary competence.

35. See supra n.28 and corresponding text.

36. Art.17(3) states that where a person has already been tried in a domestic court for conduct which is the subject of the complaint before the Court then the presumption is that the case is inadmissible and, moreover, a trial by the Court is not permitted under Art.20(3). Art.20(3) does, however, provide an express exception to its own operation when it states that the Court may try the case if the proceedings m the domestic court were for the purpose of shielding the person from criminal responsibility for crimes within the jurisdiction of the Court; or the trial was not conducted independently or impartially and was conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.

37. Moreover, in terms of temporality, the Court's jurisdiction is limited by virtue of Art.11 to those crimes committed after the entry into force of the Statute.

38. In terms of the more general law which is applicable in a case, Art.21(1) of the Statute specifies the following: the Statute, Elements of Crimes, and the Rules of Procedure and Evidence (the Elements of Crimes and the Rules of Procedure and Evidence are to be adopted subsequently by the Assembly of States Parties, although initially being prepared in draft form by the Preparatory Commission: see supra n.12); applicable treaties and the established principles of the international law of armed conflict; and general principles of law derived from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime. The main general principles of criminal law are set out in express terms in Part 3 of the Statute: it includes provisions relating to, inter alia, nullem crimen sine lege, a person will not be criminally responsible unless the conduct in question constituted at the time of commission a crime within the jurisdiction of the Court (Art.22); nulla poena sine lege, a person convicted by the Court may be punished only in accordance with the Statute (Art.23); non-retroactive application of the provisions of the Statute (Art.24); the principles of individual criminal responsibility (Art.25, and see also infra nn.42–43 and corresponding text); the exclusion of jurisdiction over persons under 18 years of age (Art.26); irrelevance of official capacity (Art.27, and see also supra n.24 and corresponding text); command responsibility (Art.28); and superior orders (Art.33). The jurisprudence of the ICTY will be of importance to the work of the Court in these areas, especially concerning command responsibility and superior orders: see the case of Prosecutor v. Delalić, Mucić, Delić, and Landžo, ICTY Judgment, IT–96–21–T, 16 Nov. 1998, paras.330–401; and the forthcoming decision of the ICTY in the Blaskic case (currently being heard before the Tribunal) involving a military commander and, the prosecutor alleges, his responsibility for crimes committed by his subordinates.

39. This is analogous to the position of the ad hoc International Criminal Tribunals for the former Yugoslavia and Rwanda established by the UN Security Council: on the ICTY/ICTR Statutes see Greenwood, C., “The Development of International Humani-tarian Law by the International Criminal Tribunal for the Former Yugoslavia” (1998) 2 Max Planck Yearbook U.N. Law 97, 111Google Scholar; and Warbrick op. cit. supra n.14, at p.468.Google Scholar

40. Accordingly, the Statute does not provide for prosecution of crimes such as drug trafficking: this is in contrast to the Draft Statute of the ILC, on which see Crawford, op. cit. supra n.4, at pp.145–146. The provision for the later inclusion of such a crime in the Statute is, however, envisaged by Annex 1(E) of the Rome Conference Final Act which, as a resolution on treaty crimes “Recommends that a Review Conference pursuant to article 111 of the Statute of the International Criminal Court consider the crimes of terrorism and drug crimes with a view to arriving at an acceptable definition and their inclusion in the list of crimes within the jurisdiction of the Court.”Google Scholar

41. Prosecutor v. Akayesu, Case No. ICTR–96–4–T, 2 09 1998, paras.494–524Google Scholar. See also the ICTY case of Prosecutor v. Karadzic and Mladic, Rule 61 hearing 108 I.L.R. 85.Google Scholar

42. See Art.2 of the ICTR Statute and Art.4 of the ICTY Statute. This is taken verbatim from Art.III of the Genocide Convention. The ICTR case of Akayesu, idem, paras.525–548 defines further the elements of the crime of complicity in genocide, and the elements of the crime of direct and public incitement to commit genocide (paras.549–562), for the purposes of the ICTR Statute.

43. Art.25(3)(b) of the Statute.

44. However, the ICTR Statute, unlike that of the Court, contains an additional, intent, requirement in its Art.3 that such an attack be on a discriminatory basis, “on national, political, ethnic, racial or religious grounds”. For consideration of this requirement by a Trial Chamber of the ICTR, see Akayesu, supra n.41, at paras.583–584. Moreover, the ICTY has found that a requirement of discriminatory intent is a necessary element of a crime against humanity for the purposes of Art.5 of the ICTY Statute although it is not mentioned in express terms: Prosecutor v. Tadić, Case No.IT–94–1–T, Opinion and Judgment, 7 May 1997, paras.650–652. The view put forward at the Rome Conference that this intent requirement should apply for all forms of crimes against humanity did not prevail and was accordingly deleted from the final text as such, this requirement exists under the Statute only in respect of the crime of persecution (Art.7(1)(h)).

45. On the legal elements of the existence of an armed conflict, see Tadić case, No.IT–94–1–AR72 (2 10. 1995), Jurisdiction 105 I.L.R. 453, 486–499 (paras.66–70 of judgment) and Tadić case, Opinion and Judgment, 7 May 1997, paras.561–576, 624–634.Google Scholar

46. As the Appeal Chamber of the Tribunal in Tadić stated: “by requiring that crimes against humanity be committed in either internal or international armed conflict, the Security Council may have defined the crime in Article 5 more narrowly than necessary under customary international law” (I.L.R., idem, p.525 (para.141 of judgment)). Moreover, the Appeal Chamber held, ibid: “It is by now a settled rule of customary international law that crimes against humanity do not require a connection to international armed conflict.”

47. Tadić, supra n.44, at paras.636–643. Akayesu, supra n.41, at para.582.

48. Tadić, idem, para.635; Akayesu, ibid.

49. Tadić, idem, para.644; Akayesu, idem.

50. Tadić, idem, paras.645–649; Akayesu, idem, paras.579–581.

51. The additional acts enumerated in the Court's Statute which are not expressly mentioned in the ICTR/ICTY Statutes are enforced disappearance of persons (Art.7(1)(i)) and the crime of apartheid (Art.7(1)(j)). Cf. the definition given to the crime of apartheid in Art.7(2)(h) which appears narrower than the definition given in Art.11 of the International Convention on the Suppression and Punishment of the Crime of Apartheid.

52. Art.7(1)(d), (e), (g), (h) and (k) all provide more specific content than is given in their corresponding provisions in the case of the ICTR (Art.3) and ICTY (Art.5). See also the definitions given to various acts in Art.7(2) of the Court's Statute.

53. See also UN High Commissioner for Human Rights Position Paper on the establishment of a Permanent International Criminal Court, Geneva, 15 June 1998, paras.39–42; and Gardam, J., “Women and the Law of Armed Conflict: Why the Silence?”' (1997) 46 I.C.L.Q. 55, 73.Google Scholar

54. There is, however, a very restrictive requirement, which was a compromise reached at the Conference, in respect of “forced pregnancy”: Art.7(2)(f) requires that this act be carried out “with the intent of affectiiig the ethnic composition of any population or carrying out other grave violations of international law”.

55. Tadić, I.L.R., supra n.45, at p.499 (para.84 of judgment).Google Scholar

56. The Appeals Chamber in Tadić stated in respect of Art.3 of the ICTY Statute that “it does not matter whether the ‘serious violation’ [which the Chamber found was a precondition for a violation of Art.3] has occurred within the context of an international or an internal armed conflict”, idem, p.504 (para.94 of judgment). The scope of the acts which are included in Art.8(2)(b) are much more extensive than that of Art.3, but this is tempered by the narrow application of this provision only to situations of international armed conflict. Cf., however, infra n.57 and corresponding text.

57. Of particular note here, e.g., is Art.8(2)(e)(iii), which provides that an intentional attack against UN personnel or other personnel or material involved in a UN peace-keeping mission or a mission to distribute relief supplies constitutes a war crime.

58. Art.8(2)(f) does, however, restrict the application of Art.8(2)(e) when it states that the latter provision “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 protracted armed conflict between governmental authorities and organized armed groups or between such groups.” This represents the application of Art.1(2) of the Second Additional Protocol of 1977 relating to the protection of victims of non-international armed conflicts. There is, nonetheless, a positive development here since Art.8(2)(e) now refers both to protracted armed conflict between governmental authorities and organised groups and—as opposed to Art.1(1) of the 1977 Second Additional Protocol to the Geneva Conventions—to conflict between organised armed groups.

59. Tadić, I.L.R., supra n.45, at p.523 (para.134 of judgment).Google Scholar

60. Moreover, the UN High Commissioner for Human Rights in a position paper on the establishment of an international criminal court stated: “It would seem patently inconsistent for an international criminal court statute to penalize those acts constituting a threat to international peace and security or which may cause harm or injury to human beings, at a relatively low level of magnitude, while ignoring the issue of individual criminal responsibility for belligerency itself writ large” (UN High Commissioner for Human Rights Position Paper on the establishment of a Permanent International Criminal Court, Geneva, 15 June 1998, para.10). The reasons in favour of the inclusion of the “crime of aggression” were also expressed cogently by the German government when it stated: “Not to include this crime would, in our view, be a regression behind the Nuremberg Charter of 1945, the ILC's Nuremberg Principles of 1950, the ILC's Draft Statute (Art.20) of 1994 and the ILC's Draft Code of Crimes against the Peace and Security of Mankind of 1969. It would also amount to a refusal to draw an appropriate conclusion from recent history. The German side believes that we need the inclusion of this crime for reasons of deterrence and prevention, and in order to reaffirm in the most unequivocal manner that the waging of an aggressive war is a crime under international law” (Proposal by Germany concerning Art.20 of the Draft Statute to the Preparatory Committee on the establishment of an International Criminal Court, Working Group on Definitions and Elements of Crime, A/AC.249/1997/WG.1/ DP.20,11 12. 1997, p.1Google Scholar. For discussion of elements of this definition see Zimmerman, , op. cit. supra n.20, at pp.200–201).Google Scholar

61. Art.5(2 ) of the Statute requires further that any additional provision defining and setting out the conditions for exercise of jurisdiction by the Court over aggression shall be consistent with the relevant provisions of the UN Charter. The reference to the Charter was, possibly, intended to ensure that the definition of aggression cannot apply to the legitimate use of armed force in carrying out Chapter VII military enforcement action (see also the German Proposal, idem, p.2; and the statement by the Russian Federation in explaining its vote on the Statute of the Court); and that a prior determination by the Security Council under Art.39 of the Charter that a State has committed an act of aggression would be necessary for the exercise by the Court of its jurisdiction over an individual for the crime of aggression (in favour of such an interpretation were the US and UK governments in their statements in the plenary session of the Rome Conference on adoption of the Statute, and see also Crawford, op. cit. supra n.4, at p.147Google Scholar; but cf. the earlier German Proposal, idem, p.2). However, beyond this the exact meaning of the provision will depend on the future provisions that will set out, inter alia, the conditions under which the Court will exercise jurisdiction with respect to this crime.

62. Annex 1 (F)(7) of the Rome Final Act states that the Preparatory Commission “shall prepare proposals for a provision on aggression, including the definition and Elements of Crimes of aggression and the conditions under which the International Criminal Court shall exercise its jurisdiction with regard to this crime. The Commission shall submit such proposals to the Assembly of States Parties at a Review Conference, with a view to arriving at an acceptable provision on the crime of aggression for inclusion in this Statute. The provisions relating to the crime of aggression shall enter into force for the States Parties in accordance with the relevant provisions of this Statute.” On the Preparatory Commission see supra n.12.

63. Moreover, Art.121 of the Statute provides more generally that an amendment can be proposed only after the expiry of seven years from the date of entry into force of the Statute.

64. Art.12(1) of the Statute.

65. The power of the prosecutor to initiate investigations proprio motu under Art.15(1) is a significant change from the ILC Draft Statute which gave no independent power to the prosecutor to initiate investigations or prosecutions: on the ILC Draft, see Crawford, op. cit. supra n.4, at p. 148. Cf., however, the limitation on this power infra n.69 and corresponding text.Google Scholar

66. Art.12(2)(a). This provision also states that if the crime was committed on board a vessel or aircraft, it is the State of registration of that vessel or aircraft which must be a State party.

67. Art.12(2)(b). There is a possible exception to Art.12(2)(b) which exists where a State ratifying the Statute makes a declaration, in accordance with Art.124, that it does not accept the jurisdiction of the Court with respect to war crimes when a crime is alleged to have been committed by its nationals or on its territory. Art.124 does limit the effect of this declaration to a period of seven years after the entry into force of the Statute for the State concerned.

As such, this system represents a rejection of the German proposal at the Rome Conference that the Court should be able to exercise jurisdiction over any of the crimes in Art.5 on the basis of universal jurisdiction; and it represents a modification of the UK proposal that jurisdiction should be exercised only when both the State of nationality and the territorial State had given consent.

68. As David Scheffer, US Ambassador-at-Large for War Crimes Issues states: “Most problematic is the extraordinary way the court's jurisdiction was framed at the last moment. A country whose forces commit war crimes could join the treaty but escape prosecution of its nationals by ‘opting out’ of the court's jurisdiction over war crimes for seven years. By contrast, a country that does not join the treaty but deploys its soldiers abroad to restore international peace and security could be vulnerable to assertions that the court has jurisdiction over acts of those soldiers. Under the treaty, the court may exercise jurisdiction over a crime if either the country of nationality of the accused or the country where the alleged crime took place is a party to the treaty or consents. Thus, with only the consent of a Saddam Hussein, even if Iraq does not join the treaty, the treaty text purports to provide the court with jurisdiction over American or other troops involved in international humani-tarian action in northern Iraq, but the court could not on its own prosecute Saddam for massacring his own people” (“America's Stake in Peace, Security and Justice”, American Society of International Law Newsletter, 09–10 1998, p.1 at p.9)Google Scholar. Concerning this position, the UK Minister of Foreign Affairs Robin Cook stated in the House of Commons: “I am sorry that, at the end of the Rome conference, the United States felt unable to support the compromise proposals. I understand its concerns about the security of its servicemen who are posted abroad, but we believe that those concerns are misplaced. Britain, too, has a large number of servicemen in posts abroad, and we and other major NATO allies are satisfied that the safeguards that are built in to the International Criminal Court will protect our servicemen against malicious or politically motivated prosecution. In particular, it is a clearly established principle that the court will be able to prosecute only when there is no remedy in national law. We are confident that we can demonstrate that there is a remedy in British justice—and, for that matter, in United States justice—for accusations that are made against our servicemen in good faith. The screening of cases by the pre-trial chamber of the International Criminal Court will provide a safeguard against accusations that are brought in bad faith” (HC Hansard, Vol.316, col.804,20 01 1998).Google Scholar

69. Art.15(3). This will only be after the prosecutor has decided, having evaluated the information made available to him or her, to initiate an investigation unless he or she determines that there is no reasonable basis to proceed under the Statute having regard to the provisions of Art.53 of the Statute. After making this determination the prosecutor must, in accordance with Art.18(1), inform all States parties and those States which, taking into account the information available, would normally exercise jurisdiction over the crimes concerned. This latter provision is intended to allow these States to start investigations or prosecutions which may have the effect, subsequently, of requiring the prosecutor to cease investigations in accordance with Art.18(2).

70. Art.15(4).

71. Ibid. If the Pre-Trial Chamber refuses to authorise an investigation, the prosecutor may make a subsequent request for authorisation to the same Pre-Trial Chamber, which must be based on new facts or evidence regarding the same situation (Art.15(5)).

72. Art.17(1)(a).

73. Art.17(1)(b).

74. Art.17(1)(c).

75. Art.17(1)(d).

76. See supra nn.27–28 and corresponding text.

77. Art.19(2)(a).

78. Art.19(2)(b).

79. Art.19(2)(c). See supra nn.66–67 and corresponding text.

80. However, such challenges need not necessarily stymie an investigation by the prosecutor. Art.19(8) provides that pending a ruling by the Court the prosecutor may seek an authorisation from the Court to pursue an investigation for any of the following purposes: preserving evidence where there is a unique opportunity to obtain important evidence or there is a significant risk that such evidence may not be subsequently available (Art.19(8)(a) read together with Art.18(6)); to take a statement or testimony from a witness or complete the collection and examination of evidence which had begun prior to the making of the challenge (Art.19(8)(b)); and, in co-operation with the relevant States, to prevent the absconding of persons in respect of whom the prosecutor has already requested a warrant of arrest under Art.58 (Art.19(8)(c)).

81. Art.82(1)(a) of the Statute allows an appeal by either party concerning a decision with respect to jurisdiction or admissibility. There are, moreover, additional grounds for appeal in Art.82.

82. There are, however, still important agreements, such as the Rules of Procedure and Evidence (Art.51), which need to be concluded even once the Statute enters into force for the Court to be able to operate: see supra n.12.