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International Criminal Courts

INTERNATIONAL CRIMINAL COURTS

A major step to close one of the important gaps in the enforcement system of international criminal law was taken on 17 July 1998 with the adoption of the Rome Statute of the International Criminal Court (Statute) at a diplomatic conference in Rome. The vote was 120 in favor to 7 against (including the United States, China, Iraq, and Israel), with twenty-one abstentions. The Statute provides for the establishment of a permanent international criminal court with jurisdiction over genocide, crimes against humanity, war crimes, and the crime of aggression. As of January 2001, 139 states, including the United States and Israel, had signed the Statute and 27 of them had ratified it. It is expected to receive the sixty ratifications required under Article 126 for it to enter into force in 2001 or 2002.

Historical background

Until the adoption of the Statute, there was no single instrument containing a comprehensive and widely accepted definition of crimes under international law, and enforcement was left to national courts exercising territorial or universal jurisdiction over these crimes or to ad hoc national or international criminal courts. Although there were occasional ad hoc international criminal courts during the Middle Ages, the first formal proposal to establish a permanent international criminal court was not made until 1872, when Gustave Moynier, one of the founders of the International Committee of the Red Cross, proposed such a court to enforce the 1864 Geneva Convention on the treatment of wounded soldiers. Leading international lawyers of the day dismissed it as impractical. The failure to set up the ad hoc international criminal tribunal envisaged in the Treaty of Versailles (1919) to try the former German emperor for "a supreme offence against international morality and the sanctity of treaties" for his role during the First World War led to numerous proposals between 1920 and 1945 for a permanent international criminal court. Two treaties, adopted by the League of Nations in 1937 at the initiative of France to establish a permanent international criminal court with jurisdiction over terrorist crimes, never entered into force.

At the end of the Second World War, the international community rejected the idea of establishing a permanent court, partly because it would take too long to set one up by treaty, and instead favored establishing two ad hoc international criminal courts to try major suspects of the Axis powers (Germany and Japan) on charges of crimes against peace, war crimes, and crimes against humanity: the International Military Tribunal at Nuremberg (Nuremberg Tribunal) and the International Military Tribunal of the Far East (Tokyo Tribunal). Their judgments were landmarks in international law in holding that the atrocities committed during the Second World War, including those perpetrated against a state's own citizens, were crimes under international law. Such atrocities were of concern to the entire international community, and any individual, regardless of status or rank, could be held criminally responsible. In 1946, the United Nations General Assembly affirmed the principles of international law recognized in the Nuremberg Charter and Judgment. However, both tribunals were criticized by some as applying retroactive justice, selective prosecution, or unfair procedures.

As a result of such criticism, Henri Donnedieu de Vabres, who served as a judge on the Nuremberg Tribunal and had made proposals on the subject, introduced a French proposal in the United Nations (UN) in 1947 to establish a permanent international criminal court. The following year, the UN General Assembly asked the International Law Commission (ILC), a UN body composed of international legal experts, to study the question. However, as a result of hostility to the idea of such a court and concerns about the crime of aggression, particularly by the United Kingdom, the United States, and the USSR, there was little progress on this proposal for more than four decades. In 1954, the ILC adopted a draft Code of Offences against the Peace and Security of Mankind, but it was never incorporated in a treaty, and the 1974 definition of aggression by the General Assembly in Resolution 3314 (XXIX) was widely seen as insufficient for determining individual criminal responsibility. The ILC resumed work on the draft code in the 1980s, but did not complete its work on a Draft Code of Crimes against the Peace and Security of Mankind (1996 Draft Code of Crimes) until 1996.

Work would not have resumed on the proposal for a permanent international criminal court until 1996 but for pressure from two different directions. First, in the 1980s, the German foreign minister, President Mikail Gorbachev of the USSR, and A. N. R. Robinson, the prime minister of Trinidad and Tobago, each called for a permanent court. Second, in May 1993, as a result of international revulsion at the massacres, rapes, and expulsions in the former Yugoslavia, the Security Council, acting under Chapter VII of the UN Charter to restore and maintain international peace and security, established the ad hoc International Criminal Tribunal for the former Yugoslavia (Yugoslavia Tribunal) with jurisdiction over genocide, crimes against humanity, and war crimes committed since 1991 in that region. In November 1994, the Security Council established a second ad hoc tribunal, the International Criminal Tribunal for Rwanda (Rwanda Tribunal), to bring to justice those responsible for genocide, crimes against humanity, and war crimes committed during internal armed conflict in Rwanda in 1994. Between 500,000 and one million members of the minority Tutsi group, as well as moderate members of the Hutu majority, were killed in Rwanda between April and July 1994.

In December 1993, the General Assembly asked the ILC to complete its work on a draft statute for a permanent international criminal court "as a mater of priority" by July 1994. The July 1994 ILC draft statute was considered in an Ad Hoc Committee in 1995 and a Preparatory Committee from 1996 to 1998 before it was adopted by the Diplomatic Conference in 1998. Since then, a Preparatory Commission has been meeting in New York. On 30 June 2000, it adopted draft Elements of Crimes, which under Article 9 must be consistent with the Statute and are to aid the court in interpreting definitions of crimes, and draft Rules of Procedure and Evidence, which also must be consistent with the Statute (Article 51). They are to be considered and adopted by the Assembly of States Parties, along with other supplementary instruments being prepared by the commission.

Jurisdiction, crimes, principles of criminal responsibility, and defenses

The court will have subject matter jurisdiction under Article 5 over four categories of crimes under international law that are committed after entry into force of the Statute: genocide, crimes against humanity, war crimes, and, once it has been defined and a procedure for addressing it agreed, the crime of aggression. Genocide, a term coined in 1944 by Rafael Lempkin, is defined in Article 6 exactly as in Article II of the 1948 Convention for the Prevention and Punishment of the Crime of Genocide.

The concept of crimes against humanity dates to the middle of the nineteenth century. The 1919 Paris Peace Conference investigated such crimes, but U.S. and Japanese objections prevented any prosecutions. However, perpetrators of such crimes were prosecuted in the Nuremberg, Tokyo, Yugoslavia, and Rwanda Tribunals. Crimes against humanity listed in Article 7(1) of the Statute (and further defined in Article 7(2)), include murder, extermination, enslavement, deportation or forcible transfer of population, imprisonment, torture, rape and other crimes of sexual violence, persecution in connection with any other prohibited act, enforced disappearance of persons, apartheid, and other inhumane acts. However, such conduct amounts to a crime against humanity only when it is "committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack." Such an attack, as defined in Article 7(2), "means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack." Despite the misleading term attack, and in contrast to the Nuremberg Charter and the Statute of the Yugoslavia Tribunal, which limited the scope of jurisdiction over crimes against humanity to those linked to armed conflict, the Statute requires no link between crimes against humanity and armed conflict or, indeed, any military action, and the attack could include legislation.

The court will have jurisdiction under Article 8 (2) (a) and (b) over grave breaches of the 1949 Geneva Conventions and other serious violations of international humanitarian law in international armed conflict, including violations of the Hague Convention IV of 1907 and its Regulations and some violations of Protocol I of the Geneva Conventions. The court also will have jurisdiction under Article 8 (2) (c) to (f ) and (3) over violations of international humanitarian law in non-international armed conflict, the most common form of armed conflict today. These include violations of common Article 3 of the 1949 Geneva Conventions and Protocol II to those treaties, as well as certain conduct that would be a violation if it occurred during international armed conflict. These provisions confirm the rapid evolution of international law in the 1990s, as evidenced by the decision of the Appeals Chamber of the Yugoslavia Tribunal in the Tadić case, concluding that serious violations of international law in internal armed conflicts entailed individual criminal responsibility; and the Rwanda Statute, which expressly gave the tribunal jurisdiction over serious violations of common Article 3 and Protocol II.

Although Articles 6, 7, and 8 simply define the court's jurisdiction, the United States has expressly recognized that they, as well as the draft Elements of Crimes, largely reflect the state of customary international law today.

Among the most important aspects of the definitions in the Statute are Article 7 (1) (g) and (2) (f ), defining the court's jurisdiction over rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity as crimes against humanity, and Article 8 (2) (b) (xxii) and (e) (vi), defining the Court's jurisdiction over analogous war crimes in international and noninternational armed conflict. Inclusion of these crimes was foreshadowed in the 1996 Draft Code of Crimes and is a recognition that such crimes are committed on a large scale throughout the world. It is also a significant advance over the 1945 Allied Control Council Law No. 10 governing trials of Nazis in Germany and the Yugoslavia and Rwanda Statutes, which expressly list rape, but not other crimes of sexual violence, and the Nuremberg and Tokyo Charters, which did not list any crimes of sexual violence.

The court will not have jurisdiction over states for international crimes, a controversial concept rejected by the ILC in 2000, or over crimes committed by legal entities, such as corporations, political parties, or trade unions. Instead, its jurisdiction will limited to crimes committed by individuals over the age of eighteen (Article 26). Individuals may be held criminally responsible under Article 25, not only if they commit or attempt to commit the crime, but also if they order, solicit, or induce others to do so; aid, abet, or otherwise assist others; or assist a group of persons acting with a common purpose. They may also beheld individually criminally responsible pursuant to Article 25 if they directly and publicly incite genocide. Except as otherwise provided in the Statute, Elements of Crimes, or international law, a person may be held criminally responsible only if the material elements of the crime were committed with intent and knowledge (Article 30), thus ruling out a negligence standard for most crimes. The Court will have jurisdiction over persons regardless of government position, including heads of state (Article 27). Military commanders can be found criminally responsible under Article 28 for crimes of subordinates under their effective control when they knew or should have known that the subordinates were committing or about to commit crimes and failed to take all necessary and reasonable measures within their power to prevent or repress the crimes or to submit the mailer to a prosecutor; civilian superiors are criminally responsible under a similar, but somewhat less strict, standard. None of the crimes are subject to a statute of limitations (Article 29).

Superior orders are largely ruled out as a defense under Article 33, and the situations in which such orders would be a defense before the court are extremely narrow. Under certain limited circumstances, criminal responsibility may be excluded under Article 31 because of a mental disease or defect, involuntary intoxication, self-defense, defense of others or certain property, or duress. Mistake of fact is a ground for excluding criminal responsibility under Article 32 only if it negates the mental element; mistake of law about whether a particular type of conduct is a crime is not a ground for excluding criminal responsibility, but mistake of law may be such a ground if it negates the mental element required.

The court will have jurisdiction under Article 12 over crimes committed on the territory of any state party to the Statute or by a national of any state party, regardless where the crime occurred. It will also have jurisdiction over crimes in a situation referred by a non-state party that has made a special declaration. In addition, the court can exercise jurisdiction over crimes committed anywhere in a situation that breaches or threatens international peace and security that has been referred by the Security Council (see below).

The cornerstone of the Statute is the principle of complementarity, as identified in the Preamble, Article 1, and Article 17. This principle has two parts. First, as the Preamble makes clear, states have the primary duty to bring those responsible for these crimes to justice. In the Preamble, the states parties affirm that "the most serious crimes of concern to the international community must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation," determine "to put an end to impunity," and recall that "it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes." Second, as Article 17 provides, the court will act only when states are unwilling and unable genuinely to investigate and prosecute suspects themselves. In such cases, and when trial is precluded under the principle of ne bis in idem (double jeopardy) as defined in Article 20 or the case is not of sufficient gravity, the court is required to determine that the case is inadmissible. In determining whether a state is unwilling, the court shall consider whether the national proceedings were or are being undertaken or the national decision (which would include amnesties, pardons, or similar measures of impunity) was made to shield the person concerned, there was unjustified delay, the proceedings were not independent or impartial, or they were conducted in a manner inconsistent with bringing the person to justice. In determining inability in a particular case, the court shall consider whether, "due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceeding." Article 17 does not, however, preclude the court from examining other factors.

There are three ways an investigation can be opened. Article 13 (b) will make ad hoc international criminal tribunals for crimes committed after entry into force of the Statute largely unnecessary. It provides that the Court may exercise jurisdiction over a genocide, crimes against humanity, war crimes, and the crime of aggression if the Security Council, acting pursuant to Chapter VII of the UN Charter, has referred a situation to the prosecutor where such crimes appear to have been committed. Article 13 (a) provides that the court may exercise its jurisdiction over such a crime when a state party has referred a situation to the prosecutor pursuant to Article 14 in which such crimes may have occurred. Article 13 (e) gives the court jurisdiction over a crime when the prosecutor has initiated an investigation pursuant to Article 15. That article authorizes the prosecutor to initiate an investigation based on information from any source, including victims and their families, intergovernmental organizations, and nongovernmental organizations, if authorized to do so by the Pre-Trial Chamber. Regardless which method is used, the prosecutor can be subjected to a lengthy series of admissibility challenges by states (whether the states are parties to the Statute or not) under Article 18, based on the complementarity criteria in Article 17, and admissibility and jurisdictional challenges under Article 19 and judicial scrutiny by the Pre-Trial Chamber before the prosecutor can open or continue an investigation.

Organization of the court

The court will be composed of six organs: the Presidency (consisting of three judges: the president and two vice presidents), three judicial divisions (Pre-Trial, Trial, and Appeals), the Office of the Prosecutor, and the Registry (Article 34). It will have eighteen full-time judges in the three judicial divisions, although that number can be raised by the Assembly of States Parties to meet an increase in the workload (Article 36). Judges must have relevant experience and either established competence in criminal law and procedure or in relevant areas of international law, such as international humanitarian law or human rights law. The judges are to be elected by the Assembly of States Parties in a secret ballot for nine-year nonrenewable terms. Article 40 requires that judges be "independent in the performance of their functions," serve full time, and not engage in outside activities that would endanger that independence. Article 42 states that the Office of the Prosecutor "shall act independently as a separate organ of the Court" and members "shall not seek or act on instructions from any external source." The prosecutor and deputy prosecutors must be "persons of high moral character, be highly competent in and have extensive practical experience in the prosecution or trial of criminal cases." They will be elected by the Assembly of States Parties in a secret ballot for a single, nonrenewable term. Article 42 provides for a registrar, elected by the judges, who will be responsible for the administration of the Court. The Registry will include a Victims and Witnesses Unit with responsibility to provide, in consultation with the Office of the Prosecutor, "protective measures and security arrangements, counselling 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." Its staff must include persons "with expertise in trauma, including trauma related to crimes of sexual violence." To help guarantee their independence, Article 46 provides that judges may only be removed by a two-thirds vote of the Assembly of States Parties and the prosecutor by a majority vote; the registrar may only be removed by a majority of the judges.

Pretrial investigation, trial, appeal, and revision

The procedure to be applied by the court draws upon both common and civil law models, but most aspects of the procedure are so modified that they should be seen as a new international criminal procedure. For example, although the procedure is largely adversarial, judges are expected to assert a greater control of litigation during all phases. Moreover, in carrying out investigations, the prosecutor has a duty to establish the truth, to investigate evidence that is favorable as well as unfavorable to the person under investigation, to respect the interests and circumstances of victims, and to fully respect the rights of persons (Article 54). The prosecutor will be largely dependent on state cooperation to conduct investigations. He or she may conduct investigations on the territory of a state, but apart from the limited exception of a major breakdown in the judicial system when authorized to do so by the Pre-Trial Chamber under Article 57, this may occur only with the consent of the state. In an important innovation, the Pre-Trial Chamber will be able to gather evidence pursuant to Article 56, which may not be available at trial, such as the testimony of a victim or witness.

One of the most important provisions in the Statute, which is likely to have an enormous impact over the long term on national criminal justice systems, is Article 55. It contains a minicharter guaranteeing the rights of persons during an investigation, and expressly guarantees that suspects questioned by the prosecutor or state authorities acting at the court's request have the right to silence, and the exercise of that right may not be considered in the determination of guilt or innocence. Suspects also have the right to the presence of a lawyer during any questioning. Evidence obtained in violation of these rights can be excluded pursuant to Article 69 (7).

Unless otherwise decided, trials will be at the seat of the court (Article 62). Article 65 requires the Trial Chamber, before accepting an admission of guilt, to determine if the accused understands the nature and consequences of this decision and has made it voluntarily after consulting counsel, and that it is supported by the facts. Discussions between the prosecutor and defense counsel concerning modification of the charges, the admission of guilt, or the penalty are not binding upon the court. The Trial Chamber under Article 64 must "ensure that the trial is fair and expeditious and is conducted with full respect for the rights of the accused and due regard for the protection of victims and witnesses." A broad range of fair trial guarantees are set forth in the Statute, including the prohibitions of retrospective criminality (nulla crimen sine lege ) (Articles 22 and 24) and punishment (nulla poena sine lege ), the right to be present (except when disrupting the trial) (Article 63), the presumption of innocence (Article 66), and most of the other rights to fair trial recognized in international instruments, such as Article 14 of the International Covenant on Civil and Political Rights and the Yugoslavia and Rwanda Statutes and Rules of Procedure and Evidence (Article 67). However, proposals to permit the use of anonymous witnesses, as authorized by the Trial Chamber of the Yugoslavia Tribunal in the Tadić case, were rejected. Article 70 spells out offenses against the administration of justice, such as perjury and bribery, which can be punished by the court or states parties. Article 72 establishes a complex procedure for safeguarding information where states consider that disclosure would prejudice their national security, and for referral to the Assembly of States Parties when the court concludes that the refusal by a state party to provide such information is not in accordance with the Statute.

Article 77 authorizes the imposition of prison sentences up to life and, in addition to a prison sentence, the court may order a fine and forfeiture of proceeds, property, or assets derived directly or indirectly from a crime. Like the Yugoslavia and Rwanda Statutes, the Statute excludes the death penalty. The prosecutor, as well as the convicted person, may appeal a judgment on the grounds of procedural, factual, or legal error, and may also appeal the sentence; the convicted person may also appeal on other grounds (Article 81). After a final decision on appeal, Article 84 permits a request for revision of a conviction or sentence on the basis of newly discovered evidence that was not available at the time of trial, where this was not the fault of the accused and the evidence could have led to a different verdict. Article 85 permits compensation for un-lawful arrest and miscarriages of justice.

The role of victims

The Statute is a major advance in international law with respect to the protection of victims, their participation in the proceedings, and their right to reparations. As stated above, the Statute provides for a Victims and Witnesses Unit, with appropriate expertise, to provide protection and support for victims. Article 68 (1) requires the Court to take "appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of witnesses," taking into account a number of factors, including whether the crime was one of sexual violence or violence against children, but such measures "shall not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial." Such measures may include conducting certain hearings in camera or withholding certain evidence prior to the commencement of the trial. Article 15 would permit victims or their families, as other reliable sources, to provide information to the prosecutor that he or she would use to determine whether to open an investigation. Although the Statute does not provide that the victims may be parties civiles, as in certain civil law systems such as France, or institute private prosecutions, as in certain common law systems such as the United Kingdom, Article 68 (3) provides that where their personal interests are affected, the court "shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial." Article 75 requires the court to establish principles relating to reparations, including restitution, compensation, and rehabilitation. The court may award reparations against the person convicted and states parties must give effect to the court's decision.

State cooperation

Article 86 provides that states are under a general obligation to cooperate fully with the court in its investigation and prosecution of crimes. These obligations include the duty to ensure that there are procedures available under national law to cooperate (Article 88), to surrender accused or escaped convicted persons promptly (Article 89), and to provide a wide range of cooperation, such as locating witnesses and evidence, conducting searches and seizures, tracing and freezing assets of the accused with a view toward forfeiture, as well as other assistance not prohibited under national law (Article 93).

Article 98 is a weak point in the Statute. Article 98 (1) provides that the court may not proceed with a request for surrender where it would require the requested state to act inconsistently with respect to its obligations under international law or the diplomatic immunity of a third state, although it is a widely shared view of the drafters that states parties would not be able to assert diplomatic immunity of their nationals to defeat a request to surrender. Article 98 (2) was added at the insistence of the United States to address existing bilateral and multilateral extradition agreements and status of forces agreements (SOFAs) providing for trial of American nationals in the United States or the other states parties. It requires that the court not proceed with a request for surrender that would require a requested state to act inconsistently with its obligations under an international agreement pursuant to which the consent of a sending state is required, unless consent is obtained.

The Court will not have any prisons, but instead will rely, like the Yugoslavia and Rwanda tribunals, on states to enforce sentences. Articles 103 to 111 provide for the voluntary enforcement of sentences by states under supervision of the court, consistent with widely accepted international treaty standards. States may not modify the sentences without Court approval. Article 109 requires states parties to give effect to fines and forfeitures.

Other matters

Article 112 provides for the establishment of an Assembly of States Parties. Its responsibilities will include adopting recommendations of the Preparatory Commission, providing management oversight of the Court, selecting the judges and the Prosecutor, deciding the budget and determining what action to take when states fail to cooperate with the court. The court is to be funded, as provided in the budget, from assessed contributions of states parties, funds provided by the UN (Article 114), and voluntary contributions (Article 115). Article 119 provides that the Court will settle any dispute concerning its judicial functions, and any other dispute between states parties concerning the interpretation or application of the Statute not settled within three months will be settled by the Assembly of States Parties or, if it so decides, by the International Court of Justice. No reservations may be made to the Statute (Article 120).

Under Article 121, no amendments are possible for seven years after entry into force. Amendments must first be adopted by the Assembly of States Parties or a Review Conference (the first of which must be held under Article 123 within seven years) by consensus or by a twothirds majority. Except as provided in Article 121 (5), amendments enter into force for all states parties one year after acceptance by seven-eighths of the states parties; states parties that have not accepted the amendment may withdraw from the Statute immediately by giving notice within one year after the amendment enters into force. In contrast, under Article 121 (5), amendments to Articles 5 to 8 (concerning definitions of crime) enter into force for those parties which have accepted them one year after their acceptance. However, if a state party has not accepted an amendment to Articles 5 to 8, then the court may not exercise its jurisdiction regarding a crime covered by that amendment when committed by that state's nationals or on its territory. Certain amendments of an institutional nature can be adopted by the Assembly of States Parties by a two-thirds majority, which will bind all states parties (Article 122). A transitional provision, Article 124, provides that a state party may, when becoming a party to the Statute, declare that, for a period of seven years after entry into force for that state, it does not accept the jurisdiction of the Court with respect to war crimes that are alleged to have been committed by its nationals or on its territory. Only one state, France, which proposed this article, has done so. Article 127 permits states parties to withdraw, effective one year after the notice, but they remain bound by obligations prior to the date of withdrawal.

Christopher Keith Hall

See also Adversary System; Criminal Procedure: Comparative Aspects; International Criminal Justice Standards; International Criminal Law; War Crimes.

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