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{{Citations missing|date=December 2006}}[[Image:International Criminal Court logo.gif|thumb|The official logo of the ICC.]]
[[Image:International Criminal Court logo.gif|thumb|The official logo of the ICC.]]
The '''International Criminal Court''' ('''ICC''') was established in 2002 as a permanent tribunal to prosecute individuals for [[genocide]], [[crimes against humanity]], [[war crimes]], and the [[crime of aggression]]. The ICC is designed to complement existing national judicial systems: the Court can only exercise its jurisdiction when national courts are unwilling or unable to investigate or prosecute such crimes, thus being a "court of last resort". Primary responsibility to exercise jurisdiction over alleged criminals is therefore left to individual states. The court can only prosecute crimes that were committed on or after 1 July 2002, the date its founding treaty, the [[Rome Statute of the International Criminal Court]], entered into force.
The '''International Criminal Court''' ('''ICC''') was established in 2002 as a permanent tribunal to prosecute individuals for [[genocide]], [[crimes against humanity]], [[war crimes]], and the [[crime of aggression]], although it cannot currently exercise its jurisdiction over the crime of aggression. The ICC is designed to complement existing national judicial systems: the Court can only exercise its jurisdiction when national courts are unwilling or unable to investigate or prosecute such crimes, thus being a "court of last resort". Primary responsibility to exercise jurisdiction over alleged criminals is therefore left to individual states. The court can only prosecute crimes that were committed on or after 1 July 2002, the date its founding treaty, the [[Rome Statute of the International Criminal Court]], entered into force.


The total number of [[State Parties of the International Criminal Court|member states of the court]] is currently 103. Chad will become a state party on 1 January 2007, bringing the total to 104, and a further 35 countries have signed but not yet ratified the Rome Statute. The official seat of the ICC is in [[The Hague]], [[Netherlands]], but the proceedings may take place anywhere.
104 states are currently [[State Parties of the International Criminal Court|members of the court]], and a further 35 countries have signed but not yet ratified the Rome Statute. The official seat of the ICC is in [[The Hague]], [[Netherlands]], but its proceedings may take place anywhere.


The ICC is functionally independent of the [[United Nations]] in terms of both personnel and financing, although some meetings of the ICC governing body, the Assembly of States Parties to the Rome Statute, are held at the UN. There is a "relationship agreement" between the ICC and the UN that governs how the two institutions regard each other legally.
The ICC is functionally independent of the [[United Nations]] in terms of both personnel and financing, although some meetings of the ICC governing body, the Assembly of States Parties to the Rome Statute, are held at the UN. There is a "relationship agreement" between the ICC and the UN that governs how the two institutions regard each other legally.
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==History==
==History==
===Early development===
===Early development===
The movement for the creation of an international court to deal with the problem of crimes committed against humanity gained force after the [[Nuremberg Trials]], established to deal with the genocide and crimes against humanity committed by the [[Nazi]]s in [[World War II]]. The trials demonstrated that the existing international legal structure did not have a standing body with the means or jurisdiction to prosecute such crimes.
The movement for the creation of an international court to deal with the problem of crimes committed against humanity gained force after the [[Nuremberg Trials|Nuremberg]] and [[International Military Tribunal for the Far East|Tokyo Trials]], established to punish serious crimes committed by the losing sides during [[World War II]]. At the request of the [[United Nations General Assembly]], the [[International Law Commission]] drafted two draft statutes by the early 1950s, but these were shelved as the [[Cold War]] made the establishment of an international criminal court politically unrealistic.<ref name="Cato">Gary T. Dempsey, 16 July 1998. [http://www.cato.org/pubs/pas/pa-311es.html ''Reasonable Doubt: The Case Against the Proposed International Criminal Court'']. The Cato Institute. Accessed 31 December 2006.</ref>


[[Trinidad and Tobago]] revived the idea in 1989, proposing the creation of a permanent international court to deal with the international drug trade.<ref name="Cato"/> While work began on a draft statute, the international community created several ''[[ad hoc]]'' tribunals to try war crimes in the former Yugoslavia and Rwanda ([[International Criminal Tribunal for the Former Yugoslavia]] in 1993, [[International Criminal Tribunal for Rwanda]] in 1994), further highlighting the need for a permanent international criminal court.<ref>Coalition for the International Criminal Court. [http://www.iccnow.org/?mod=icchistory ''History of the ICC'']. Accessed 2006-12-31.</ref>
The establishment of the court was first proposed in 1949 by the [[International Law Commission]] at the request of the [[United Nations General Assembly]]. The work which led to the International Law Commission was begun in Resolution of the Assembly of the [[League of Nations]] of [[September 22]], [[1924]].

The development of the ICC followed the creation of several ''[[ad hoc]]'' tribunals to try war crimes in the former Yugoslavia and Rwanda ([[International Criminal Tribunal for the Former Yugoslavia]] in 1993, [[International Criminal Tribunal for Rwanda]] in 1994). Subsequently, there arose a desire to establish a permanent tribunal in order to avoid repeated use of ''ad hoc'' tribunals.


===Adoption and entry into force of the Rome Statute===
===Adoption and entry into force of the Rome Statute===
The General Assembly called the "United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court" in Italy, where the Rome Statute of the International Criminal Court was drafted. On 17 July 1998, the Statute was adopted by a vote of 120 to 7, with 21 countries abstaining. The seven countries that voted against the treaty were the [[United States]], [[Israel]], [[People's Republic of China]], [[Iraq]], [[Qatar]], [[Libya]], and [[Yemen]].<ref>Michael P. Scharf, August 1998. [http://www.asil.org/insights/insigh23.htm ''Results of the Rome Conference for an International Criminal Court'']. The American Society of International Law. Accessed 2006-12-04.</ref>
Following years of negotiations, the General Assembly convened a conference in Rome, Italy, in June 1998, with the aim of finalising a treaty. On 17 July 1998, the [[Rome Statute of the International Criminal Court]] was adopted by a vote of 120 to 7, with 21 countries abstaining. The seven countries that voted against the treaty were the [[United States]], [[Israel]], [[People's Republic of China]], [[Iraq]], [[Qatar]], [[Libya]], and [[Yemen]].<ref>Michael P. Scharf, August 1998. [http://www.asil.org/insights/insigh23.htm ''Results of the Rome Conference for an International Criminal Court'']. The American Society of International Law. Accessed 2006-12-04.</ref>


The Rome Statute became a binding treaty at the moment 60 states had ratified it, an event ceremonialized at the United Nations Headquarters on [[April 11]], [[2002]]. Ten countries submitted their ratifications at this time, bringing the total to 66, so that no one nation would hold the honor of depositing the 60th ratification. The ICC legally came into existence on [[July 1]], [[2002]], and can only prosecute crimes committed after that date.
The Rome Statute became a binding treaty at the moment 60 states had ratified it, an event ceremonialized at the United Nations Headquarters on [[April 11]], [[2002]]. Ten countries submitted their ratifications at this time, bringing the total to 66, so that no one nation would hold the honor of depositing the 60th ratification. The ICC legally came into existence on [[July 1]], [[2002]], and can only prosecute crimes committed after that date.
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Article 5 of the Rome Statute grants the Court jurisdiction over four crimes, which it refers to as the “''most serious crimes of concern to the international community as a whole''”: the crime of [[genocide]], [[crimes against humanity]], [[war crimes]], and the [[crime of aggression]]. The statute defines each of these crimes except for aggression: it provides that the Court will not exercise its jurisdiction over the crime of aggression until such time as the state parties agree on a definition of the crime and set out the conditions under which it may be prosecuted.<ref>[http://www.un.org/law/icc/statute/99_corr/2.htm Article 5] of the Rome Statute. Accessed 2006-11-23.</ref>
Article 5 of the Rome Statute grants the Court jurisdiction over four crimes, which it refers to as the “''most serious crimes of concern to the international community as a whole''”: the crime of [[genocide]], [[crimes against humanity]], [[war crimes]], and the [[crime of aggression]]. The statute defines each of these crimes except for aggression: it provides that the Court will not exercise its jurisdiction over the crime of aggression until such time as the state parties agree on a definition of the crime and set out the conditions under which it may be prosecuted.<ref>[http://www.un.org/law/icc/statute/99_corr/2.htm Article 5] of the Rome Statute. Accessed 2006-11-23.</ref>


Many states wanted to add [[terrorism]] and [[Illegal drug trade|drug trafficking]] to the list of crimes covered by the Rome Statute; however, states were unable to agree a definition for terrorism and it was decided not to include drug trafficking as this might overwhelm the Court's limited resources.<ref>United Nations Department of Public Information, December 2002. [http://www.un.org/News/facts/iccfact.htm ''The International Criminal Court'']. Accessed 2006-12-05.</ref>
Many states wanted to add [[terrorism]] and [[Illegal drug trade|drug trafficking]] to the list of crimes covered by the Rome Statute; however, states were unable to agree a definition for terrorism and it was decided not to include drug trafficking as this might overwhelm the Court's limited resources.<ref>United Nations Department of Public Information, December 2002. [http://www.un.org/News/facts/iccfact.htm ''The International Criminal Court'']. Accessed 2006-12-05.</ref> India lobbied to have the use of [[nuclear weapons]] and other [[weapons of mass destruction]] included as war crimes, but this move was also defeated.<ref name="India">Dilip Lahiri, 17 July 1998. [http://www.indianembassy.org/policy/ICC/ICC_Adoption_July_17_1998.html ''Explanation of vote on the adoption of the Statute of the International Criminal Court'']. Embassy of India, Washington, D.C. Accessed 31 December 2006.</ref>


Article 123 of the Rome Statute provides that a Review Conference shall be convened in 2009, and that this conference may review the list of crimes contained in Article 5.<ref>[http://www.un.org/law/icc/statute/99_corr/13.htm Article 123] of the Rome Statute. Accessed 2006-12-05. (See also Rolf Einar Fife, 21 November 2006, [http://www.icc-cpi.int/library/asp/ICC-ASP-5-INF2_English.pdf ''Review Conference: scenarios and options'']. Accessed 2006-12-05.)</ref> The final resolution on adoption of the Rome Statute specifically recommended that terrorism and drug trafficking be reconsidered at this conference.<ref>[[Amnesty International]], 2 November 2006. [http://web.amnesty.org/library/Index/ENGIOR400372006 International Criminal Court: Concerns at the fifth session of the Assembly of States Parties]. Accessed 2006-12-05.</ref> It has also been suggested that ‘cyberterrorism and serious cybercrimes’ should be included.<ref>Stein Schjolberg, April 2005. [http://www.cybercrimelaw.net/documents/UN_Bangkok_05.htm Law comes to cyberspace]. Accessed 2006-12-05.</ref>
Article 123 of the Rome Statute provides that a Review Conference shall be convened in 2009, and that this conference may review the list of crimes contained in Article 5.<ref>[http://www.un.org/law/icc/statute/99_corr/13.htm Article 123] of the Rome Statute. Accessed 2006-12-05. (See also Rolf Einar Fife, 21 November 2006, [http://www.icc-cpi.int/library/asp/ICC-ASP-5-INF2_English.pdf ''Review Conference: scenarios and options'']. Accessed 2006-12-05.)</ref> The final resolution on adoption of the Rome Statute specifically recommended that terrorism and drug trafficking be reconsidered at this conference.<ref>[[Amnesty International]], 2 November 2006. [http://web.amnesty.org/library/Index/ENGIOR400372006 International Criminal Court: Concerns at the fifth session of the Assembly of States Parties]. Accessed 2006-12-05.</ref> It has also been suggested that ‘cyberterrorism and serious cybercrimes’ should be included.<ref>Stein Schjolberg, April 2005. [http://www.cybercrimelaw.net/documents/UN_Bangkok_05.htm Law comes to cyberspace]. Accessed 2006-12-05.</ref>
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===How cases reach the court===
===How cases reach the court===
There are four methods by which a case may reach the ICC: [http://supremecourtofindia.nic.in/new_links/icc.htm]
There are four methods by which a case may reach the ICC:<ref>[[Yogesh Kumar Sabharwal]]. [http://supremecourtofindia.nic.in/new_links/icc.htm ''The International Criminal Court — Its Role, Tasks and Performance'']. Supreme Court of India. Accessed 31 December 2006.</ref>


#A member country of the Assembly of States Parties (ratified the Court's Statute) refers the case;
#A member country of the Assembly of States Parties (ratified the Court's Statute) refers the case;
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===Relationship with the United Nations===
===Relationship with the United Nations===
Unlike the [[International Court of Justice]], the ICC is legally independent from the United Nations. Nonetheless, the UN has a clearly defined role towards the Court. The Security Council may refer to the Court cases that would not otherwise fall under the Court's jurisdiction (as it did in relation to the situation in [[Darfur]], which the Court could not otherwise have prosecuted as [[Sudan]] is not a state party). Article 16 of the Rome Statute also allows the Security Council to request that the Court defer from investigating a case for a period of 12 months.<ref>[http://www.un.org/law/icc/statute/99_corr/2.htm Article 16] of the Rome Statute. Accessed 2006-11-23.</ref> Such a deferral may be renewed indefinitely by the Security Council.
Unlike the [[International Court of Justice]], the ICC is legally independent from the United Nations. Nonetheless, the UN has a clearly defined role towards the Court. The Security Council may refer to the Court cases that would not otherwise fall under the Court's jurisdiction (as it did in relation to the situation in [[Darfur]], which the Court could not otherwise have prosecuted as [[Sudan]] is not a state party). Article 16 of the Rome Statute also allows the Security Council to request that the Court defer from investigating a case for a period of 12 months.<ref name="Article 16">[http://www.un.org/law/icc/statute/99_corr/2.htm Article 16] of the Rome Statute. Accessed 2006-11-23.</ref> Such a deferral may be renewed indefinitely by the Security Council.


This relationship with the UN is governed by a “Relationship Agreement between the International Criminal Court and the United Nations”.<ref>[http://www.icc-cpi.int/library/asp/ICC-ASP-3-Res1_English.pdf Negotiated Relationship Agreement between the International Criminal Court and the United Nations]. Accessed 2006-11-23.</ref><ref>Coalition for the International Criminal Court, 12 November 2004. [http://iccnow.org/documents/CICCFS-UNRelationshipAgmt_12Nov04.pdf ''Q&A: The Relationship Agreement between the ICC and the UN'']. Accessed 2006-11-23.</ref>
This relationship with the UN is governed by a “Relationship Agreement between the International Criminal Court and the United Nations”.<ref>[http://www.icc-cpi.int/library/asp/ICC-ASP-3-Res1_English.pdf Negotiated Relationship Agreement between the International Criminal Court and the United Nations]. Accessed 2006-11-23.</ref><ref>Coalition for the International Criminal Court, 12 November 2004. [http://iccnow.org/documents/CICCFS-UNRelationshipAgmt_12Nov04.pdf ''Q&A: The Relationship Agreement between the ICC and the UN'']. Accessed 2006-11-23.</ref>
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Article 79 also establishes a Victims Trust Fund,<ref>[http://www.un.org/law/icc/statute/99_corr/7.htm Article 79] of the Rome Statute. Accessed 2006-11-23.</ref> which will make reparations payments in accordance with Article 75.<ref>[http://www.un.org/law/icc/statute/99_corr/6.htm Article 75] of the Rome Statute. Accessed 2006-11-23. For more information, see the [http://www.icc-cpi.int/vtf.html ''Trust Fund for Victims''], [http://www.icc-cpi.int/victimsissues.html ''Victims and Witnesses Issues''], and [http://www.iccnow.org/?mod=trustfund ''Victims Trust Fund'']</ref>
Article 79 also establishes a Victims Trust Fund,<ref>[http://www.un.org/law/icc/statute/99_corr/7.htm Article 79] of the Rome Statute. Accessed 2006-11-23.</ref> which will make reparations payments in accordance with Article 75.<ref>[http://www.un.org/law/icc/statute/99_corr/6.htm Article 75] of the Rome Statute. Accessed 2006-11-23. For more information, see the [http://www.icc-cpi.int/vtf.html ''Trust Fund for Victims''], [http://www.icc-cpi.int/victimsissues.html ''Victims and Witnesses Issues''], and [http://www.iccnow.org/?mod=trustfund ''Victims Trust Fund'']</ref>


==Cases before the court==
==Cases before the Court==
{{main|Cases before the International Criminal Court}}
{{main|Cases before the International Criminal Court}}


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*The situation in [[Ituri]], [[Democratic Republic of Congo]] (DRC), which was referred to the court by the DRC on [[April 19]], [[2004]]. On 17 March 2006, [[Thomas Lubanga]], former leader of the [[Union of Congolese Patriots]] militia in Ituri, became the first person to be arrested under a warrant issued by the court;
*The situation in [[Ituri]], [[Democratic Republic of Congo]] (DRC), which was referred to the court by the DRC on [[April 19]], [[2004]]. On 17 March 2006, [[Thomas Lubanga]], former leader of the [[Union of Congolese Patriots]] militia in Ituri, became the first person to be arrested under a warrant issued by the court;


*The situation in [[Darfur]], [[Sudan]], which was referred to the court in March 2005 by the [[United Nations Security Council]]. In November 2006, the prosecutor said his investigation was "''nearly complete''" and he has sufficient evidence to file charges of persecution, torture, rape and murder. <ref> [http://news.scotsman.com/latest.cfm?id=1737272006 ''ICC says Darfur evidence enough to prosecute''], ''[[The Scotsman]]'', [[2006-11-23]] </ref>
*The situation in [[Darfur]], [[Sudan]], which was referred to the court in March 2005 by the [[United Nations Security Council]]. In November 2006, the prosecutor said his investigation was "''nearly complete''" and he has sufficient evidence to file charges of persecution, torture, rape and murder.<ref>Nicola Leske, 23 November 2006. [http://news.scotsman.com/latest.cfm?id=1737272006 ''ICC says Darfur evidence enough to prosecute'']. ''[[The Scotsman]]''. Accessed 31 December 2006.</ref>


The [[Central African Republic]] referred itself to the court on [[January 6]], [[2005]], but the Chief Prosecutor has not yet decided whether to open an investigation into this matter.
The [[Central African Republic]] referred itself to the court on [[January 6]], [[2005]], but the Chief Prosecutor has not yet decided whether to open an investigation into this matter.
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In a special case, former [[Liberia]]n President [[Charles G. Taylor|Charles Taylor]] was transferred to the buildings of the ICC in June 2006 for a trial under the mandate and auspices of the [[Special Court for Sierra Leone]]. This was due to political and security concerns about holding the trial in [[Freetown]].
In a special case, former [[Liberia]]n President [[Charles G. Taylor|Charles Taylor]] was transferred to the buildings of the ICC in June 2006 for a trial under the mandate and auspices of the [[Special Court for Sierra Leone]]. This was due to political and security concerns about holding the trial in [[Freetown]].


On 9 February 2006, the Chief Prosecutor published a letter<ref>Luis Moreno-Ocampo, 9 February 2006. [http://www.icc-cpi.int/library/organs/otp/OTP_letter_to_senders_re_Iraq_9_February_2006.pdf ''Letter concerning the situation in Iraq'']. Accessed 2006-11-23.</ref> answering complaints connected with the [[invasion of Iraq]]. He concluded that he did not have authority to consider the complaint about the legality of the invasion, and that the available information did not provide sufficient evidence for proceeding with an investigation of war crimes due to the targeting of civilians or clearly excessive attacks; the evidence for willful killing and inhuman treatment, which covered around 20 people, did not appear to meet the "gravity" threshold for an investigation. {{see also|The International Criminal Court and the 2003 invasion of Iraq}}
On 9 February 2006, the Chief Prosecutor published a letter<ref>Luis Moreno-Ocampo, 9 February 2006. [http://www.icc-cpi.int/library/organs/otp/OTP_letter_to_senders_re_Iraq_9_February_2006.pdf ''Letter concerning the situation in Iraq'']. Accessed 2006-11-23.</ref> answering complaints connected with the [[2003 invasion of Iraq]]. He concluded that he did not have authority to consider the complaint about the legality of the invasion, and that the available information did not provide sufficient evidence for proceeding with an investigation of war crimes due to the targeting of civilians or clearly excessive attacks; the evidence for willful killing and inhuman treatment, which covered around 20 people, did not appear to meet the "gravity" threshold for an investigation. {{see also|The International Criminal Court and the 2003 invasion of Iraq}}


==Opposition to the ICC==
==Criticisms of the Court==
===Potential for politically motivated prosecutions===
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{{unreferenced|section|date=December 2006}}
Opponents of the Court argue that there are “insufficient checks and balances on the authority of the ICC prosecutor and judges” and “insufficient protection against politicized prosecutions or other abuses”.<ref name="US DoS faq">US Department of State, 30 July 2003. [http://www.state.gov/t/pm/rls/fs/23428.htm ''Frequently Asked Questions About the U.S. Government's Policy Regarding the International Criminal Court (ICC)'']. Accessed 31 December 2006.</ref> [[Henry Kissinger]] has claimed that the checks and balances are so weak that the prosecutor “has virtually unlimited discretion in practice”.<ref name="Kissinger">Henry A. Kissinger. “The Pitfalls of Universal Jurisdiction”. ''[[Foreign Affairs]]'', July/August 2001, p. 95. Accessed 31 December 2006.</ref>
The creation and existence of the court has been controversial with a number of states. The largest disagreement continues to surround the source and nature of the court's jurisdiction.


===Lack of due process===
Some countries object to the court, saying that there is very little legal supervision of the court's apparatus, and that the court's verdicts may become subject to political motives. They argue that the court's mandate was already excessively wide (and would be even more so if the crime of aggression was defined in its Statute), meaning the court could (perhaps unwillingly) become a tool for [[barratry]] and pointless legal hassle. Although supporters say that the checks and balances in the ICC made this an unlikely possibility, opponents argue that giving even a temporary member of the Security Council the power to veto any objections of prosecutorial bias gave the ICC no accountability whatsoever.
Many American critics of the Court, such as the [[Heritage Foundation]], claim that “Americans who appear before the court would be denied such basic constitutional rights as trial by a jury of one's peers, protection from double jeopardy, and the right to confront one's accusers.”<ref name="Heritage">Brett D. Schaefer, 9 January 2001. [http://www.heritage.org/Research/InternationalOrganizations/EM708.cfm ''Overturning Clinton's Midnight Action on the International Criminal Court'']. The Heritage Foundation. Accessed 2006-11-23.</ref>


However, [[Human Rights Watch]] argues that “the ICC has one of the most extensive lists of due process guarantees ever written”, including “presumption of innocence; right to counsel; right to present evidence and to confront witnesses; right to remain silent; right to be present at trial; right to have charges proved beyond a reasonable doubt; and protection against double jeopardy”.<ref>Human Rights Watch. [http://hrw.org/campaigns/icc/facts.htm ''Myths and Facts About the International Criminal Court'']. Accessed 31 December 2006.</ref> According to David Scheffer, who led the US delegation to the Rome Conference (and who voted against adoption of the treaty), “when we were negotiating the Rome treaty, we always kept very close tabs on, ‘Does this meet U.S. constitutional tests, the formation of this court and the due process rights that are accorded defendants?’ And we were very confident at the end of Rome that those due process rights, in fact, are protected, and that this treaty does meet a constitutional test.”<ref>CNN, 2 January 2000. [http://transcripts.cnn.com/TRANSCRIPTS/0001/02/bp.00.html ''Burden of Proof'' transcript]. Accessed 31 December 2006.</ref>
Supporters would counter that the ICC's definitions are very similar to those of the Nuremberg trials. They also argue that the states which object to the ICC are those which regularly carry out genocide, war crimes and crimes against humanity in order to protect or promote their political or economic interests.
<!--[[Amnesty International]], 1 August 2000. [http://web.amnesty.org/library/index/engior400092000 The International Criminal Court: Fact sheet 9: Fair trial guarantees].-->


===Interference with national reconciliation processes===
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===The United States===
In the past, governments have granted amnesty to human rights abusers as part of agreements to end conflict. It is sometimes argued that these amnesties are necessary to allow the peaceful transfer of power from abusive regimes. Some argue that, by denying states the right to offer amnesty to human rights abusers, the International Criminal Court may make it more difficult to negotiate an end to conflict.{{fact}}
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{{main|United States and the International Criminal Court}}


It is worth noting, however, that the United Nations,<ref>See, for example, Kofi Annan, 4 October 2000. [http://www.afrol.com/Countries/Sierra_Leone/documents/un_sil_court_041000.htm ''Report of the Secretary-General on the establishment of a Special Court for Sierra Leone''], para. 22. Accessed 31 December 2006.</ref> the International Committee of the Red Cross,<ref>Jean-Marie Henckaerts & Louise Doswald-Beck, 2005. ''Customary International Humanitarian Law'', Volume I: Rules, pp. 613-614. Cambridge: Cambridge University Press. ISBN 0521005280</ref> and others maintain that granting amnesty to those accused of war crimes and other serious crimes is a violation of international law. Moreover, Article 16 of the Rome Statute allows the Security Council to prevent the Court from investigating or prosecuting a case,<ref name="Article 16"/> and Article 53 allows the Prosecutor the discretion not to initiate an investigation if he or she believes that “an investigation would not serve the interests of justice”.<ref>[http://www.un.org/law/icc/statute/99_corr/5.htm Article 53] of the Rome Statute. Accessed 2006-12-31.</ref> These provisions would appear to allow the negotiation of amnesties, to the extent that such amnesties are consistent with international law.
⚫
Although the US originally voted against the adoption of the Rome Statute, President [[Bill Clinton]] unexpectedly reversed his position on 31 December 2000 and signed the treaty,<ref>Amnesty International. [http://web.amnesty.org/pages/icc-US_threats-eng ''US Threats to the International Criminal Court'']. Accessed 2006-11-23.</ref><ref>Brett D. Schaefer, 9 January 2001. [http://www.heritage.org/Research/InternationalOrganizations/EM708.cfm ''Overturning Clinton's Midnight Action on the International Criminal Court'']. The Heritage Foundation. Accessed 2006-11-23.</ref> but indicated that he would not recommend that his successor, [[George W. Bush]], submit it to the Senate for ratification.<ref>Curtis A Bradley, May 2002. [http://www.asil.org/insights/insigh87.htm ''U.S. Announces Intent Not to Ratify International Criminal Court Treaty'']. The American Society of International Law. Accessed 2006-11-23.</ref> On 6 May 2002, the Bush administration announced it was nullifying the United States' signature of the treaty.<ref>John R Bolton, 6 May 2002. [http://www.state.gov/r/pa/prs/ps/2002/9968.htm ''International Criminal Court: Letter to UN Secretary General Kofi Annan'']. US Department of State. Accessed 2006-11-23.</ref> However, public opinion polls routinely show strong popular support for the Court: the most recent poll, conducted in February 2005, found that 69% of Americans supported U.S. participation in the ICC.<ref name="ccfr">Chicago Council on Foreign Relations, 1 March 2005. [http://72.14.253.104/search?q=cache:ZnScevCY3wcJ:http://www.ccfr.org/publications/opinion/Press%2520Release.pdf+chicago+foreign+relations+icc&hl=en&gl=us&ct=clnk&cd=1|title=Clear ''Media Release: Large Bipartisan Majority of Americans Favors Referring Darfur War Crime Cases to International Criminal Court'']. Accessed 2006-12-01.</ref>


===Crimes within the jurisdiction of the Court===
⚫
The country's main objections are interference with their national sovereignty and a fear of politically motivated prosecutions [http://www.defenselink.mil/releases/2002/b05062002_bt233-02.html].
As noted above, some states were unhappy about the exclusion of terrorism, drug trafficking and the use of weapons of mass destruction from the Court's jurisdiction. The government of India, for example, expressed concern that “the Statute of the ICC lays down, by clear implication, that the use of weapons of mass destruction is not a war crime. This is an extraordinary message to send to the international community.”<ref name="India"/>


At the same time, other commentators have argued that the Rome Statute defines crimes too broadly or too vaguely. For example, China has argued that the definition of ‘war crimes’ goes beyond that accepted under customary international law.<ref>Lu Jianping and Wang Zhixiang. “China's Attitude Towards the ICC” in ''Journal of International Criminal Justice'', July 2005.</ref>
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In 2002, the U.S. Congress passed the [[American Servicemembers' Protection Act]] (ASPA), which contained a number of provisions, including prohibitions on the U.S. providing military aid to countries which had ratified the treaty establishing the court (exceptions granted), and permitting the President to authorize military force to free any U.S. military personnel held by the court, leading opponents to dub it "[[The Hague Invasion Act]]." The act was later modified to permit U.S. cooperation with the ICC when dealing with U.S. enemies.


==Opposition to the Court==
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The U.S. has also made a number of Bilateral Immunity Agreements (BIAs, also known as "Article 98 Agreements") with a number of countries, prohibiting the surrender to the ICC of a broad scope of persons including current or former government officials, military personnel, and U.S. employees (including non-national contractors) and nationals. As of 2 August 2006, the US Department of State reported that it had signed 101 of these agreements.<ref name="BIAs">Coalition for the International Criminal Court, 2006. [http://www.iccnow.org/documents/CICCFS_BIAstatusCurrent.pdf ''Status of US Bilateral Immunity Acts'']. Accessed 2006-11-23.</ref> The United States has cut aid to many countries which have refused to sign BIAs.<ref name="BIAs">Coalition for the International Criminal Court, 2006. [http://www.iccnow.org/documents/CICCFS_BIAstatusCurrent.pdf ''Status of US Bilateral Immunity Acts'']. Accessed 2006-11-23.</ref>
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{{unreferenced|section|date=December 2006}}
While most of the world's states are now members of the Court, a small minority continue to object to its existence.

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===The United States===
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{{main|United States and the International Criminal Court}}


⚫
Although the US originally voted against the adoption of the Rome Statute, President [[Bill Clinton]] unexpectedly reversed his position on 31 December 2000 and signed the treaty,<ref>Amnesty International. [http://web.amnesty.org/pages/icc-US_threats-eng ''US Threats to the International Criminal Court'']. Accessed 2006-11-23.</ref><ref name="Heritage"/> but indicated that he would not recommend that his successor, [[George W. Bush]], submit it to the Senate for ratification.<ref>Curtis A Bradley, May 2002. [http://www.asil.org/insights/insigh87.htm ''U.S. Announces Intent Not to Ratify International Criminal Court Treaty'']. The American Society of International Law. Accessed 2006-11-23.</ref> On 6 May 2002, the Bush administration announced it was nullifying the United States' signature of the treaty.<ref>John R Bolton, 6 May 2002. [http://www.state.gov/r/pa/prs/ps/2002/9968.htm ''International Criminal Court: Letter to UN Secretary General Kofi Annan'']. US Department of State. Accessed 2006-11-23.</ref> However, public opinion polls routinely show strong popular support for the Court: the most recent poll, conducted in February 2005, found that 69% of Americans supported U.S. participation in the ICC.<ref name="ccfr">Chicago Council on Foreign Relations, 1 March 2005. [http://72.14.253.104/search?q=cache:ZnScevCY3wcJ:http://www.ccfr.org/publications/opinion/Press%2520Release.pdf+chicago+foreign+relations+icc&hl=en&gl=us&ct=clnk&cd=1|title=Clear ''Media Release: Large Bipartisan Majority of Americans Favors Referring Darfur War Crime Cases to International Criminal Court'']. Accessed 2006-12-01.</ref>
<h5> United Nations Security Council Resolutions <h5>
In July 2002, the United States threatened to use its Security Council veto to block renewal of the mandates of several United Nations peacekeeping operations, unless the Security Council agreed to permanently exempt U.S. nationals from the Court's jurisdiction.


⚫
The country's main objections are interference with their national sovereignty and a fear of politically motivated prosecutions.
Initially, the U.S. had sought to prevent personnel on UN missions being tried by any country except that of their nationality. When the other members of the Security Council rejected that approach, the United States then sought to make use of a provision of the Rome Statute, which permits the Security Council to request the ICC not to exercise its jurisdiction over a certain matter for up to one year at a time. The United States sought the Security Council to convey such a request to the ICC concerning personnel on United Nations peacekeeping and enforcement operations, and to have that request renewed automatically each year. (If it was renewed automatically each year, then another Security Council resolution would be required to cease the request, which the U.S. could then veto—which would effectively make the request permanent.) Court supporters argued that the Rome Statute requires that for the request to be valid it must be voted upon anew each year in the Security Council, and hence that an automatically renewing request would violate the Statute.


⚫
In 2002, the U.S. Congress passed the [[American Servicemembers' Protection Act]] (ASPA), which contained a number of provisions, including prohibitions on the U.S. providing military aid to countries which had ratified the treaty establishing the court (exceptions granted), and permitting the President to authorize military force to free any U.S. military personnel held by the court, leading opponents to dub it the "Hague Invasion Act." The act was later modified to permit U.S. cooperation with the ICC when dealing with U.S. enemies.
Other members of the Security Council opposed this United States request also. However, they were increasingly concerned about the future of peacekeeping operations. The United Kingdom eventually negotiated a compromise, whereby the U.S. would be granted its request, but only for a period of one year, and a new Security Council vote would be required in July each year for the exclusion of peacekeepers from ICC jurisdiction to be continued. All members of the Security Council endorsed this resolution, although many did so reluctantly. The result was [[UN Security Council Resolution 1422]].


⚫
The U.S. has also made a number of Bilateral Immunity Agreements (BIAs, also known as "Article 98 Agreements") with a number of countries, prohibiting the surrender to the ICC of a broad scope of persons including current or former government officials, military personnel, and U.S. employees (including non-national contractors) and nationals. As of 2 August 2006, the US Department of State reported that it had signed 101 of these agreements.<ref name="BIAs">Coalition for the International Criminal Court, 2006. [http://www.iccnow.org/documents/CICCFS_BIAstatusCurrent.pdf ''Status of US Bilateral Immunity Acts'']. Accessed 2006-11-23.</ref> The United States has cut aid to many countries which have refused to sign BIAs.<ref name="BIAs"/>
NGO supporters of the Court, along with several countries not on the Security Council (including Canada and New Zealand), protested the legality of the resolution. The resolution was made under Chapter VII of the UN Charter, which requires a "threat to international peace or security" for the Security Council to act; ICC supporters have argued that a U.S. threat to veto peacekeeping operations does not constitute a threat to international peace or security.


A resolution to exempt citizens of the U.S. from jurisdiction of the court was renewed in 2003 by Resolution 1487, but after the [[Abu Ghraib prisoner abuse|abuse of prisoners in Abu Ghraib, Iraq]] it became clear that there was no majority for it, the U.S. withdrew its second proposed renewal of the resolution.
In July 2002, the United States threatened to use its Security Council veto to block renewal of the mandates of several United Nations peacekeeping operations, unless the Security Council agreed to permanently exempt U.S. nationals from the Court's jurisdiction. The Council eventually passed [[UN Security Council Resolution 1422]], exempting U.S. peacekeepers from ICC jurisdiction for a period of one year. This resolution was renewed for another year in 2003 but, following the [[Abu Ghraib prisoner abuse|abuse of prisoners in Abu Ghraib, Iraq]], it became clear that a majority opposed further renewing the exemption, and the U.S. withdrew its proposal.


===Israel===
===Israel===
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==References==
==References==
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<references />
<references/>
</div>


==See also==
==See also==
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===Other===
===Other===
* [http://www.iccnow.org The Coalition for the International Criminal Court]
* [http://www.iccnow.org The Coalition for the International Criminal Court]
* [http://www.npwj.org No Peace Without Justice]
* [http://www.amicc.org American NGO Coalition for the International Criminal Court]
* [http://www.amicc.org American NGO Coalition for the International Criminal Court]
* [http://www.article126.com Article 126 | the unofficial ICC blog]
* [http://www.npwj.org No Peace Without Justice]
* [http://www.article126.com Article 126] - unofficial ICC blog
* [http://www.internationalcrimesblog.com The ''McNabb Associates'' International Crimes Blog]
* [http://www.internationalcrimesblog.com The ''McNabb Associates'' International Crimes Blog]
* [http://www.globalpolitician.com/articles.asp?ID=84 Objections to the ICC under the U.S. Constitution and International Law]
* [http://www.globalpolitician.com/articles.asp?ID=84 Objections to the ICC under the U.S. Constitution and International Law]
* [http://www.foreignpolicy.com/story/cms.php?story_id=3392 “Don't Fear the International Criminal Court”] by David Kaye, in ''[[Foreign Policy]]'', January/February 2006
* [http://www.foreignpolicy.com/story/cms.php?story_id=3392 “Don't Fear the International Criminal Court”] by David Kaye, in ''[[Foreign Policy]]'', January/February 2006
* [http://www.turkishweekly.net/articles.php?id=54 "The International Criminal Court and Its Significance", by Cenap CAKMAK, Rutgers, The State University of New Jersey]
* [http://www.turkishweekly.net/articles.php?id=54 "The International Criminal Court and Its Significance", by Cenap CAKMAK, Rutgers, The State University of New Jersey]
* [http://www.hrw.org/campaigns/icc/facts.htm "Myths and Facts About the International Criminal Court"] - by [[Human Rights Watch]]
* [http://www.amnestyusa.org/icc/index.do “The International Criminal Court”] by [[Amnesty International]] USA
* [http://www.amnestyusa.org/icc/index.do “The International Criminal Court”] by [[Amnesty International]] USA
* [http://www.menschenrechte.org/beitraege/International_Criminal_Court.htm International Criminal Court Exhibition]
* [http://www.menschenrechte.org/beitraege/International_Criminal_Court.htm International Criminal Court Exhibition]

Revision as of 03:38, 1 January 2007

File:International Criminal Court logo.gif
The official logo of the ICC.

The International Criminal Court (ICC) was established in 2002 as a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression, although it cannot currently exercise its jurisdiction over the crime of aggression. The ICC is designed to complement existing national judicial systems: the Court can only exercise its jurisdiction when national courts are unwilling or unable to investigate or prosecute such crimes, thus being a "court of last resort". Primary responsibility to exercise jurisdiction over alleged criminals is therefore left to individual states. The court can only prosecute crimes that were committed on or after 1 July 2002, the date its founding treaty, the Rome Statute of the International Criminal Court, entered into force.

104 states are currently members of the court, and a further 35 countries have signed but not yet ratified the Rome Statute. The official seat of the ICC is in The Hague, Netherlands, but its proceedings may take place anywhere.

The ICC is functionally independent of the United Nations in terms of both personnel and financing, although some meetings of the ICC governing body, the Assembly of States Parties to the Rome Statute, are held at the UN. There is a "relationship agreement" between the ICC and the UN that governs how the two institutions regard each other legally.

The ICC is separate from, and should not be confused with, the International Court of Justice (often referred to as the “World Court”), which is the United Nations organ that settles disputes between nations.

It should also be noted that "International Criminal Court" is sometimes abbreviated as ICCt to distinguish it from the "International Chamber of Commerce" or the "International Cricket Council," both of which also use the abbreviation ICC. However, the more common abbreviation (ICC) is used in this article.

History

Early development

The movement for the creation of an international court to deal with the problem of crimes committed against humanity gained force after the Nuremberg and Tokyo Trials, established to punish serious crimes committed by the losing sides during World War II. At the request of the United Nations General Assembly, the International Law Commission drafted two draft statutes by the early 1950s, but these were shelved as the Cold War made the establishment of an international criminal court politically unrealistic.[1]

Trinidad and Tobago revived the idea in 1989, proposing the creation of a permanent international court to deal with the international drug trade.[1] While work began on a draft statute, the international community created several ad hoc tribunals to try war crimes in the former Yugoslavia and Rwanda (International Criminal Tribunal for the Former Yugoslavia in 1993, International Criminal Tribunal for Rwanda in 1994), further highlighting the need for a permanent international criminal court.[2]

Adoption and entry into force of the Rome Statute

Following years of negotiations, the General Assembly convened a conference in Rome, Italy, in June 1998, with the aim of finalising a treaty. On 17 July 1998, the Rome Statute of the International Criminal Court was adopted by a vote of 120 to 7, with 21 countries abstaining. The seven countries that voted against the treaty were the United States, Israel, People's Republic of China, Iraq, Qatar, Libya, and Yemen.[3]

The Rome Statute became a binding treaty at the moment 60 states had ratified it, an event ceremonialized at the United Nations Headquarters on April 11, 2002. Ten countries submitted their ratifications at this time, bringing the total to 66, so that no one nation would hold the honor of depositing the 60th ratification. The ICC legally came into existence on July 1, 2002, and can only prosecute crimes committed after that date.

The first bench of 18 judges was elected by an Assembly of State Parties in February 2003. They were sworn in at the inaugural session of the Court on March 11, 2003.[4] The Court issued its first arrest warrants on 8 July 2005,[5] and the first pre-trial hearings were held in 2006.[6]

Membership

World map of ICC member states
Main article: State Parties of the International Criminal Court

To date, 104 countries have ratified or acceded to the court, including nearly all of Europe and South America, and nearly half of all African countries.[7] A further 35 states have signed but not yet ratified the treaty,[8] which under the law of treaties obliges states to refrain from “acts which would defeat the object and purpose” of the treaty.[9] The USA and Israel have "unsigned" the Rome treaty in order to avoid these obligations.

Jurisdiction

Crimes within the jurisdiction of the Court

Article 5 of the Rome Statute grants the Court jurisdiction over four crimes, which it refers to as the “most serious crimes of concern to the international community as a whole”: the crime of genocide, crimes against humanity, war crimes, and the crime of aggression. The statute defines each of these crimes except for aggression: it provides that the Court will not exercise its jurisdiction over the crime of aggression until such time as the state parties agree on a definition of the crime and set out the conditions under which it may be prosecuted.[10]

Many states wanted to add terrorism and drug trafficking to the list of crimes covered by the Rome Statute; however, states were unable to agree a definition for terrorism and it was decided not to include drug trafficking as this might overwhelm the Court's limited resources.[11] India lobbied to have the use of nuclear weapons and other weapons of mass destruction included as war crimes, but this move was also defeated.[12]

Article 123 of the Rome Statute provides that a Review Conference shall be convened in 2009, and that this conference may review the list of crimes contained in Article 5.[13] The final resolution on adoption of the Rome Statute specifically recommended that terrorism and drug trafficking be reconsidered at this conference.[14] It has also been suggested that ‘cyberterrorism and serious cybercrimes’ should be included.[15]

Territorial jurisdiction

During the negotiations that led to the Rome Statute, a large number of states argued that the Court should be allowed to exercise universal jurisdiction. However, this proposal was defeated due in large part to opposition from the United States.[16] A compromise was reached, allowing the Court to exercise its jurisdiction only under certain limited circumstances, namely:

  1. Where the person accused of committing a crime is a national of a state party (or where the person's state has accepted the jurisdiction of the Court);
  2. Where the alleged crime was committed on the territory of a state party (or where the state on whose territory the crime was committed has accepted the jurisdiction of the Court); or
  3. Where a situation is referred to the Court by the UN Security Council.[17]

Temporal jurisdiction

The Court's jurisdiction does not apply retroactively: it can only prosecute crimes committed on or after 1 July 2002 (the date on which the Rome Statute entered into force). Where a state becomes party to the Rome Statute after that date, the Court can exercise jurisdiction automatically with respect to crimes committed after the statute enters into force for that state.[18]

Court of last resort

The Court is intended as a court of last resort, investigating and prosecuting only where national courts have failed. Article 17 of the Statute provides that a case is inadmissible if:

‘(a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;
(b) 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;
(c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3;
(d) The case is not of sufficient gravity to justify further action by the Court.’[19]

Article 20, paragraph 3, specifies that, if a person has already been tried by another court, the ICC cannot try them again for the same conduct unless the proceedings in the other court:

‘(a) Were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or
(b) Otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.’[20]

Structure

File:ICC.jpg
The International Criminal Court in The Hague

Composition of the court

Main article: Judges of the International Criminal Court

The International Criminal Court comprises four organs: the Presidency, the Judicial Divisions (the Pre-Trial Division, the Trial Division and the Appeals Division), the Office of the Prosecutor, and the Registry.[21]

The court consists of 18 judges, all of whom are nationals of States Parties to the Rome Statute. They must be “persons of high moral character, impartiality and integrity who possess the qualifications required in their respective States for appointment to the highest judicial offices”. Each judge is elected by States Parties for a term of up to nine years.[22]

The President of the court is Philippe Kirsch of Canada. The Chief Prosecutor is Luis Moreno-Ocampo of Argentina.

How cases reach the court

There are four methods by which a case may reach the ICC:[23]

  1. A member country of the Assembly of States Parties (ratified the Court's Statute) refers the case;
  2. A country that has chosen to accept the ICC's jurisdiction refers the case;
  3. The United Nations Security Council refers the case; or
  4. The three-judge panel authorizes a case initiated by the ICC Prosecutor.

Relationship with the United Nations

Unlike the International Court of Justice, the ICC is legally independent from the United Nations. Nonetheless, the UN has a clearly defined role towards the Court. The Security Council may refer to the Court cases that would not otherwise fall under the Court's jurisdiction (as it did in relation to the situation in Darfur, which the Court could not otherwise have prosecuted as Sudan is not a state party). Article 16 of the Rome Statute also allows the Security Council to request that the Court defer from investigating a case for a period of 12 months.[24] Such a deferral may be renewed indefinitely by the Security Council.

This relationship with the UN is governed by a “Relationship Agreement between the International Criminal Court and the United Nations”.[25][26]

Victim participation and reparations

The Rome Statute provides for an unprecedented level of victim participation in the proceedings of ICC cases and situations. For example, Article 43(6) establishes a Victims and Witnesses Unit within the court's Registry, with the mandate of providing "protective measures and security arrangements, counseling and other appropriate assistance for witnesses, victims who appear before the Court, and others who are at risk on account of testimony given by such witnesses."[27] Additionally, Article 68 sets forth procedures that specifically deal with "Protection of the victims and witnesses and their participation in the proceedings."[28] The Court is currently considering, with respect to the Thomas Lubanga case, whether victims may participate in the investigation stage or must wait until the trial stage.[29]

Article 79 also establishes a Victims Trust Fund,[30] which will make reparations payments in accordance with Article 75.[31]

Cases before the Court

Main article: Cases before the International Criminal Court

To date, the ICC has received 1,700 communications about alleged crimes in 139 countries.[32] However, 80% of these communications have been found outside the Court's jurisdiction.[32] The Prosecutor, Luis Moreno-Ocampo, has so far opened an investigation into three situations: [33]

  • The situation in Darfur, Sudan, which was referred to the court in March 2005 by the United Nations Security Council. In November 2006, the prosecutor said his investigation was "nearly complete" and he has sufficient evidence to file charges of persecution, torture, rape and murder.[34]

The Central African Republic referred itself to the court on January 6, 2005, but the Chief Prosecutor has not yet decided whether to open an investigation into this matter.

In a special case, former Liberian President Charles Taylor was transferred to the buildings of the ICC in June 2006 for a trial under the mandate and auspices of the Special Court for Sierra Leone. This was due to political and security concerns about holding the trial in Freetown.

On 9 February 2006, the Chief Prosecutor published a letter[35] answering complaints connected with the 2003 invasion of Iraq. He concluded that he did not have authority to consider the complaint about the legality of the invasion, and that the available information did not provide sufficient evidence for proceeding with an investigation of war crimes due to the targeting of civilians or clearly excessive attacks; the evidence for willful killing and inhuman treatment, which covered around 20 people, did not appear to meet the "gravity" threshold for an investigation.

See also: The International Criminal Court and the 2003 invasion of Iraq

Criticisms of the Court

Potential for politically motivated prosecutions

Opponents of the Court argue that there are “insufficient checks and balances on the authority of the ICC prosecutor and judges” and “insufficient protection against politicized prosecutions or other abuses”.[36] Henry Kissinger has claimed that the checks and balances are so weak that the prosecutor “has virtually unlimited discretion in practice”.[37]

Lack of due process

Many American critics of the Court, such as the Heritage Foundation, claim that “Americans who appear before the court would be denied such basic constitutional rights as trial by a jury of one's peers, protection from double jeopardy, and the right to confront one's accusers.”[38]

However, Human Rights Watch argues that “the ICC has one of the most extensive lists of due process guarantees ever written”, including “presumption of innocence; right to counsel; right to present evidence and to confront witnesses; right to remain silent; right to be present at trial; right to have charges proved beyond a reasonable doubt; and protection against double jeopardy”.[39] According to David Scheffer, who led the US delegation to the Rome Conference (and who voted against adoption of the treaty), “when we were negotiating the Rome treaty, we always kept very close tabs on, ‘Does this meet U.S. constitutional tests, the formation of this court and the due process rights that are accorded defendants?’ And we were very confident at the end of Rome that those due process rights, in fact, are protected, and that this treaty does meet a constitutional test.”[40]

Interference with national reconciliation processes

In the past, governments have granted amnesty to human rights abusers as part of agreements to end conflict. It is sometimes argued that these amnesties are necessary to allow the peaceful transfer of power from abusive regimes. Some argue that, by denying states the right to offer amnesty to human rights abusers, the International Criminal Court may make it more difficult to negotiate an end to conflict.[citation needed]

It is worth noting, however, that the United Nations,[41] the International Committee of the Red Cross,[42] and others maintain that granting amnesty to those accused of war crimes and other serious crimes is a violation of international law. Moreover, Article 16 of the Rome Statute allows the Security Council to prevent the Court from investigating or prosecuting a case,[24] and Article 53 allows the Prosecutor the discretion not to initiate an investigation if he or she believes that “an investigation would not serve the interests of justice”.[43] These provisions would appear to allow the negotiation of amnesties, to the extent that such amnesties are consistent with international law.

Crimes within the jurisdiction of the Court

As noted above, some states were unhappy about the exclusion of terrorism, drug trafficking and the use of weapons of mass destruction from the Court's jurisdiction. The government of India, for example, expressed concern that “the Statute of the ICC lays down, by clear implication, that the use of weapons of mass destruction is not a war crime. This is an extraordinary message to send to the international community.”[12]

At the same time, other commentators have argued that the Rome Statute defines crimes too broadly or too vaguely. For example, China has argued that the definition of ‘war crimes’ goes beyond that accepted under customary international law.[44]

Opposition to the Court

While most of the world's states are now members of the Court, a small minority continue to object to its existence.

The United States

Main article: United States and the International Criminal Court

Although the US originally voted against the adoption of the Rome Statute, President Bill Clinton unexpectedly reversed his position on 31 December 2000 and signed the treaty,[45][38] but indicated that he would not recommend that his successor, George W. Bush, submit it to the Senate for ratification.[46] On 6 May 2002, the Bush administration announced it was nullifying the United States' signature of the treaty.[47] However, public opinion polls routinely show strong popular support for the Court: the most recent poll, conducted in February 2005, found that 69% of Americans supported U.S. participation in the ICC.[48]

The country's main objections are interference with their national sovereignty and a fear of politically motivated prosecutions.

In 2002, the U.S. Congress passed the American Servicemembers' Protection Act (ASPA), which contained a number of provisions, including prohibitions on the U.S. providing military aid to countries which had ratified the treaty establishing the court (exceptions granted), and permitting the President to authorize military force to free any U.S. military personnel held by the court, leading opponents to dub it the "Hague Invasion Act." The act was later modified to permit U.S. cooperation with the ICC when dealing with U.S. enemies.

The U.S. has also made a number of Bilateral Immunity Agreements (BIAs, also known as "Article 98 Agreements") with a number of countries, prohibiting the surrender to the ICC of a broad scope of persons including current or former government officials, military personnel, and U.S. employees (including non-national contractors) and nationals. As of 2 August 2006, the US Department of State reported that it had signed 101 of these agreements.[49] The United States has cut aid to many countries which have refused to sign BIAs.[49]

In July 2002, the United States threatened to use its Security Council veto to block renewal of the mandates of several United Nations peacekeeping operations, unless the Security Council agreed to permanently exempt U.S. nationals from the Court's jurisdiction. The Council eventually passed UN Security Council Resolution 1422, exempting U.S. peacekeepers from ICC jurisdiction for a period of one year. This resolution was renewed for another year in 2003 but, following the abuse of prisoners in Abu Ghraib, Iraq, it became clear that a majority opposed further renewing the exemption, and the U.S. withdrew its proposal.

Israel

Israel states that it has "deep sympathy" with the goals of the court. However, it has concerns that political pressure on the court would lead it to reinterpret international law or to "invent new crimes". It cites the inclusion of "the transfer of parts of the civilian population of an occupying power into occupied territory" as a war crime as an example of this, whilst at the same time disagrees with the exclusion of terrorism and drug trafficking. Israel sees the powers given to the prosecutor as excessive and the geographical appointment of judges as disadvantaging Israel which is not part of any of the UN Regional Groups.[50]

Israel voted against the adoption of the Rome Statute but later signed the court. In 2002 it submitted a letter to the United Nations declaring that it did not intend to ratify the treaty, using the same wording as the similar letter from the United States.[51]

  • The Interpreter is a 2005 film featuring a fictional African head of state seeking to avoid being sent to the ICC by the UN Security Council for crimes against humanity.

References

  1. ^ a b Gary T. Dempsey, 16 July 1998. Reasonable Doubt: The Case Against the Proposed International Criminal Court. The Cato Institute. Accessed 31 December 2006.
  2. ^ Coalition for the International Criminal Court. History of the ICC. Accessed 2006-12-31.
  3. ^ Michael P. Scharf, August 1998. Results of the Rome Conference for an International Criminal Court. The American Society of International Law. Accessed 2006-12-04.
  4. ^ Coalition for the International Criminal Court. Judges and the Presidency. Accessed 2006-12-05.
  5. ^ International Criminal Court, 14 October 2005. Warrant of Arrest unsealed against five LRA Commanders. Accessed 2006-12-05.
  6. ^ International Criminal Court, 9 November 2006. Prosecutor presents evidence that could lead to first ICC trial. Accessed 2006-12-05.
  7. ^ International Criminal Court, 2006. The States Parties to the Rome Statute. Accessed 2006-11-23.
  8. ^ The American Non-Governmental Organizations Coalition for the International Criminal Court. Ratifications & Declarations. Accessed 2006-12-04.
  9. ^ The 1969 Vienna Convention on the Law of Treaties, Article 18. Accessed 2006-11-23.
  10. ^ Article 5 of the Rome Statute. Accessed 2006-11-23.
  11. ^ United Nations Department of Public Information, December 2002. The International Criminal Court. Accessed 2006-12-05.
  12. ^ a b Dilip Lahiri, 17 July 1998. Explanation of vote on the adoption of the Statute of the International Criminal Court. Embassy of India, Washington, D.C. Accessed 31 December 2006.
  13. ^ Article 123 of the Rome Statute. Accessed 2006-12-05. (See also Rolf Einar Fife, 21 November 2006, Review Conference: scenarios and options. Accessed 2006-12-05.)
  14. ^ Amnesty International, 2 November 2006. International Criminal Court: Concerns at the fifth session of the Assembly of States Parties. Accessed 2006-12-05.
  15. ^ Stein Schjolberg, April 2005. Law comes to cyberspace. Accessed 2006-12-05.
  16. ^ Elizabeth Wilmhurst, 1999. ‘Jurisdiction of the Court’, p. 136. In Roy S Lee (ed.), The International Criminal Court: The Making of the Rome Statute. The Hague: Kluwer Law International. ISBN 90-411-1212-X.
  17. ^ Articles 12 & 13 of the Rome Statute. Accessed 2006-11-23.
  18. ^ Article 11 of the Rome Statute. Accessed 2006-11-23.
  19. ^ Article 17 of the Rome Statute. Accessed 2006-12-04.
  20. ^ Article 20 of the Rome Statute. Accessed 2006-12-04.
  21. ^ International Criminal Court. Structure of the Court. Accessed 2006-11-23.
  22. ^ Article 36 of the Rome Statute. Accessed 2006-11-23.
  23. ^ Yogesh Kumar Sabharwal. The International Criminal Court — Its Role, Tasks and Performance. Supreme Court of India. Accessed 31 December 2006.
  24. ^ a b Article 16 of the Rome Statute. Accessed 2006-11-23.
  25. ^ Negotiated Relationship Agreement between the International Criminal Court and the United Nations. Accessed 2006-11-23.
  26. ^ Coalition for the International Criminal Court, 12 November 2004. Q&A: The Relationship Agreement between the ICC and the UN. Accessed 2006-11-23.
  27. ^ Article 43(6) of the Rome Statute. Accessed 2006-11-23.
  28. ^ Article 68 of the Rome Statute. Accessed 2006-11-23.
  29. ^ ICC Office of the Prosecutor, 6 June 2006. Prosecution's Observations on the Applications for Participation of Applicants a/0001/06 to a/0003/06. Accessed 2006-11-23.
  30. ^ Article 79 of the Rome Statute. Accessed 2006-11-23.
  31. ^ Article 75 of the Rome Statute. Accessed 2006-11-23. For more information, see the Trust Fund for Victims, Victims and Witnesses Issues, and Victims Trust Fund
  32. ^ a b Stephanie Hanson, 17 November 2006. Africa and the International Criminal Court. Council on Foreign Relations. Accessed 2006-11-23.
  33. ^ International Criminal Court, 2006. Situations and Cases. Accessed 2006-11-23.
  34. ^ Nicola Leske, 23 November 2006. ICC says Darfur evidence enough to prosecute. The Scotsman. Accessed 31 December 2006.
  35. ^ Luis Moreno-Ocampo, 9 February 2006. Letter concerning the situation in Iraq. Accessed 2006-11-23.
  36. ^ US Department of State, 30 July 2003. Frequently Asked Questions About the U.S. Government's Policy Regarding the International Criminal Court (ICC). Accessed 31 December 2006.
  37. ^ Henry A. Kissinger. “The Pitfalls of Universal Jurisdiction”. Foreign Affairs, July/August 2001, p. 95. Accessed 31 December 2006.
  38. ^ a b Brett D. Schaefer, 9 January 2001. Overturning Clinton's Midnight Action on the International Criminal Court. The Heritage Foundation. Accessed 2006-11-23.
  39. ^ Human Rights Watch. Myths and Facts About the International Criminal Court. Accessed 31 December 2006.
  40. ^ CNN, 2 January 2000. Burden of Proof transcript. Accessed 31 December 2006.
  41. ^ See, for example, Kofi Annan, 4 October 2000. Report of the Secretary-General on the establishment of a Special Court for Sierra Leone, para. 22. Accessed 31 December 2006.
  42. ^ Jean-Marie Henckaerts & Louise Doswald-Beck, 2005. Customary International Humanitarian Law, Volume I: Rules, pp. 613-614. Cambridge: Cambridge University Press. ISBN 0521005280
  43. ^ Article 53 of the Rome Statute. Accessed 2006-12-31.
  44. ^ Lu Jianping and Wang Zhixiang. “China's Attitude Towards the ICC” in Journal of International Criminal Justice, July 2005.
  45. ^ Amnesty International. US Threats to the International Criminal Court. Accessed 2006-11-23.
  46. ^ Curtis A Bradley, May 2002. U.S. Announces Intent Not to Ratify International Criminal Court Treaty. The American Society of International Law. Accessed 2006-11-23.
  47. ^ John R Bolton, 6 May 2002. International Criminal Court: Letter to UN Secretary General Kofi Annan. US Department of State. Accessed 2006-11-23.
  48. ^ Chicago Council on Foreign Relations, 1 March 2005. Media Release: Large Bipartisan Majority of Americans Favors Referring Darfur War Crime Cases to International Criminal Court. Accessed 2006-12-01.
  49. ^ a b Coalition for the International Criminal Court, 2006. Status of US Bilateral Immunity Acts. Accessed 2006-11-23.
  50. ^ Israel Ministry of Foreign Affairs, 30 June 2002. Israel and the International Criminal Court. Accessed 2002-06-30.
  51. ^ The American Non-Governmental Organizations Coalition for the International Criminal Court. Ratifications & Declarations. Accessed 2006-12-04.

See also

Publications

  • Ilaria Bottigliero, Redress for Victims of Crimes under International Law, Martinus Nijhoff Publishers, The Hague (2004), 304 pages.
  • Ilaria Bottigliero, “Redress and International Criminal Justice in Asia and Europe”, Asia Europe Journal, Vol. 3 (4) 2005, pp. 453-461. http://asef.on2web.com/subSite/ccd/documents/finalpaper.pdf
  • Ilaria Bottigliero, “The Contribution of Humanitarian Law to Gender Justice in Asia through the ICC”, 3 ISIL Yearbook of International Humanitarian and Refugee Law (2003), pp. 48-58.
  • Ilaria Bottigliero, “The International Criminal Court - Hope for the Victims”, 32 SGI Quarterly, April 2003, pp. 13-15. http://www.sgi.org/english/Features/quarterly/0304/perspective.htm
  • Bruce Broomhall, International Justice and the International Criminal Court: Between Sovereignty and the Rule of Law. Oxford: Oxford University Press (2003).
  • Hans Köchler, Global Justice or Global Revenge? International Criminal Justice at the Crossroads. Vienna/New York: Springer, 2003, ISBN 3-211-00795-4
  • Hans Köchler, “Universal Jurisdiction and International Power Politics: Ideal versus Real”, in: Yeditepe’de Felsefe / Philosophy at Yeditepe, Istanbul, Vol. 1, No. 5 (August 2006), pp. 1-16.
  • Roy S Lee (ed.), The International Criminal Court: The Making of the Rome Statute. The Hague: Kluwer Law International (1999). ISBN 90-411-1212-X
  • Roy S Lee & Hakan Friman (eds.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence. Ardsley, NY: Transnational Publishers (2001). ISBN 1-57105-209-7
  • Madeline Morris, “High crimes and misconceptions: the ICC and non-party states”, Law and Contemporary Problems, Winter 2001, vol. 64, no. 1, p. 13ff. Accessed 2006-11-23.
  • William A Schabas, An Introduction to the International Criminal Court (2nd ed.). Cambridge: Cambridge University Press (2004). ISBN 0-521-01149-3
  • Nicolaos Strapatsas, ‘Universal Jurisdiction And The International Criminal Court’, Manitoba Law Journal, 2002, vol. 29, p. 2.
  • Lyal S. Sunga, The Emerging System of International Criminal Law: Developments in Codification and Implementation (1997).
  • Lyal S. Sunga, The Crimes within the Jurisdiction of the International Criminal Court (Part II, Articles 5-10), Vol. 6/4 (No. European Journal of Crime, Criminal Law and Criminal Justice (1998) 377-399.
  • Lyal S. Sunga, The Attitude of Asian Countries Towards the International Criminal Court, 2 Indian Society of International Law Yearbook of International Humanitarian and Refugee Law (2002) 18-57.
  • Lyal S. Sunga, International Criminal Law: Protection of Minority Rights, Beyond a One-Dimensional State: An Emerging Right to Autonomy? (ed. Zelim Skurbaty)(2004) 255-275.

UN & ICC websites

Other

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