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1 The ICC
A new kind of institution in the international human rights regime
- The creation of the ICC in the context of the international human rights regime
- The evolution of the ICCâs institutional design: a weak court becomes strong
- The ICCâs enforcement mechanism in context
- Conclusion
This chapter sets the stage for the following chapters by providing background information on the International Criminal Court (ICC) and its institutional design as relates to holding states to their commitment to protect against and punish genocide, crimes against humanity, and war crimes. It first briefly describes the courtâs creation in the context of the international human rights regime. It then traces the evolution of the ICCâs institutional design from its original conception as a weak institution that would allow states to guard their sovereignty since states and the United Nations (UN) Security Council would retain significant control over the ability of the prosecutor and court to act. Finally, the chapter provides additional context for understanding the ICCâs enforcement mechanism by comparing the courtâs powers to those typically granted to the committees overseeing compliance with international human rights treaties and to those associated with the ad hoc international criminal tribunals.
The creation of the ICC in the context of the international human rights regime
The existence of the ICC is the result of a journey that commenced with the Nuremberg trials after World War II. Motivated by the destruction caused by the war, the international community began the process of creating a regime to protect the basic human rights of all individuals.1 In 1948, the UN General Assembly adopted the Universal Declaration of Human Rights (UDHR), a document that expressed the somewhat revolutionary idea that human rights were universal and the international community had an obligation to ensure those rights were protected without regard to state boundaries or statesâ sovereign rights.2 Although the UDHR was only declaratory, it paved the way for a host of binding international human rights treaties to which states were encouraged to commit.3
The two main treaties at the foundation of the international human rights regime are the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Additional international human rights treaties followed, and the regime now boasts six main treaties, to which the great majority of states have committed.4 For example, the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) entered into force in 1969. The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) was adopted in December 1984 and entered into force in 1987. The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) opened for signature in 1980 and entered into force in 1981. Finally, the Convention on the Rights of the Child (CRC) entered into force in 1990. By their terms and provisions, all six primary treaties have in common the goal and focus of encouraging governments to improve their domestic legal practices as they relate to protecting against and punishing human rights abusesâfor all citizens and particular groups that historically have received less protection.
The idea of a permanent international criminal court was also first raised decades ago. The experience of the war made only too clear that some governments may not abide by international human rights norms. In those cases where governments or leaders continued to abuse their citizens, the trials at Nuremberg provided a model for holding individuals criminally liable for abuses they committed on their own citizens as well as others.5 Thus, beginning in 1951, the International Law Commission (ILC) was tasked with preparing draft statutes for the creation of a permanent international criminal court.6 However, the process of creating the court stalled thereafter with the commencement of the Cold War and was not again revisited until four decades later.
A 1990 request submitted by Trinidad and Tobago7 for an international criminal court to help it prosecute narcotics traffickers caused the world community once again to turn its attention to the possibility of a permanent court that could hold individuals criminally accountable for human rights abuses.8 By July 1994, the ILC produced a draft statute that was adopted and recommended to the General Assembly.9 Thereafter, the General Assembly adopted a resolution to establish an Ad Hoc Committee to review the 1994 ILC Draft, and they invited states to submit comments to the draft and participate in Committee debates.10 A Preparatory Committee took over between 1996 and 1998 with the object of negotiating the precise statutory language that would govern the court and its functions.11 By April 1998, based on input from various state representatives, the Preparatory Committee had produced a draft statute with 116 articles and many bracketed optional provisions that the international community decided to use as the basis for negotiations during a diplomatic conference of plenipotentiaries in the summer of 1998 in Romeâthe Rome Conference.12
After five weeks of negotiations, at the conclusion of the conference in July 1998, states voted to adopt the Rome Statuteâthe treaty creating the worldâs first permanent treaty-based international criminal court. Attending the conference were 160 states, 33 international governmental coalitions, and a coalition of over 200 nongovernmental organizations (NGOs).13 Of the states in attendance, 120 voted in favor of adoption of the statute, seven voted against, and 21 abstained.14 On 1 July 2002, after the required 60 states had ratified the statute, the ICC came into existence and began operating in The Hague, The Netherlands.
The Rome Statuteâs preamble states that the ICC was created in order to end impunity for perpetrators of the most serious crimes of genocide, crimes against humanity, war crimes, and aggression (which will come under the courtâs jurisdiction after January 2017).15 By ratifying the treaty, states agree to grant the court automatic jurisdiction over their citizens who commit one of the core crimes with no further consent from the state party, as long as the crimes were committed after ratification.16 In fact, the ICC may exercise jurisdiction over nationals of states that are not parties to the treaty without their consent where the nationals of those states commit covered crimes within the territory of states parties.17 In addition, according to the terms of the treaty, an independent ICC prosecutor elected by a majority of signatory nations has proprio motu powers to commence investigations on his own or based on referrals from a state party.18 The Security Council can also refer investigations, but it has no direct oversight powers and no veto power over what situations are investigated or prosecuted.19 Moreover, the ICCâs powers to investigate and prosecute extend to all individuals since the treaty does not recognize any immunity that states may otherwise grant to heads of state who engage in criminal activity.20
Although the ICC has a broad jurisdictional mandate, it operates based on a system of âcomplementarity,â meaning that it functions as a court of last resort. By the provisions of the Rome Statute, the ICC will obtain jurisdiction over the nationals of states parties where the state is âunwilling or unable genuinelyâ to proceed with a case.21 âUnwillingnessâ includes instances where national proceedings are a sham or are inconsistent with an intention to bring the person to justice.22 The âunwillingnessâ provision is designed to preclude the possibility of prosecutions aimed at shielding perpetrators due to, for example, government participation in, or complicity with, the offense.23 A nationâs âinabilityâ to prosecute includes instances where, because of the collapse or unavailability of its national judicial system, the nation cannot obtain the accused or the necessary evidence, or is otherwise incapable of carrying out the proceedings.24 The ICC, as opposed to the states that are parties to the treaty creating the court, is charged with determining whether the âunwilling or unableâ bases for proceeding before the court have been met.
The evolution of the ICCâs institutional design: a weak court becomes strong
That the ICC was created and that it has the powers it has is nothing short of remarkable. The original conception for the court reflected state sovereignty concerns and envisaged a weak institution with circumscribed jurisdiction and which vested much control over the decision to commence prosecutions in the states themselves or the UN Security Council.
For example, early ILC drafts allowed states to limit or extend their acceptance of the ICCâs jurisdiction over particular crimes and/or for particular time periodsâan âopt-inâ regime.25 The 1994 ILC Draft provided that for crimes other than genocide, the international criminal court could not exercise jurisdiction unless all states that could otherwise assert jurisdiction (such as the state where the acts were committed or the state with custody over the accused) specifically consented.26 By contrast, under the Rome Statute, the prosecutor and court have automatic jurisdiction over any of the covered crimes committed by the citizens of a state party unless the pertinent state itself is prosecuting the offenses.
Not only did the 1994 ILC Draft significantly limit the scope of the courtâs jurisdiction, but it also limited the role of the court and prosecutor in triggering investigations. That draft only permitted states or the Security Council to commence proceedings.27 The Security Councilâs power did not end with its ability to suggest cases, however. According to the 1994 ILC Draft, any permanent member of the Security Council would be able to use its veto power to prevent the ICC from exercising jurisdiction over a matter since no prosecution could be commenced without Security Council approval.28
In fact, during the 1998 Rome Conference, this same core set of issues about the ICCâs jurisdiction over crimes, the mechanism for triggering prosecutions, and the role of the Security Council was the subject of intense debate. NGOs and about 60 states known as the like-minded group were aligned from the start of the conference in pushing for a stronger and more independent prosecutor and court with broad powers to exercise jurisdiction over mass atrocities. Some other states initially pressed for a court with more limited powers, but were persuaded during the conference to vote for a stronger court. For example, France eventually voted for the adoption of the Rome Statute, but it had previously called for a jurisdictional regime whereby all states affected by a case would have to give their consent in order for...
