International Criminal Court
by Beth Lamont
The Humanist magazine, November / December 1998
The foundation for a new International Criminal Court (ICC)
was laid this summer, June 15 through July 17, in Rome, Italy,
during five tedious weeks of suspenseful and intricate negotiations
in six official languages, among 162 nations. A historic United
Nations conclave, barely mentioned by most U.S. media, the negotiations
culminated, almost miraculously, in a signed draft document to
try individuals for crimes against humanity.
The United States was one of the seven nations-including China,
Iraq, and Libya-which did not sign the document.
Because of its status as a U.N. nongovernmental organization
(NGO), the American Humanist Association, publisher of the Humanist,
was invited to attend the negotiations as an observer and informal
participants were more than three hundred other NGOs. Also in
attendance were Amnesty International, Human Rights Watch, the
Lawyers Committee for Human Rights, Global Policy Reform, and
the World Federalist Movement, among others. Together they comprise
the NGO Coalition for an International Court. While the coalition
was formed in 1995, some members have been working to create an
international criminal court since before the United Nations was
In fact, efforts to create an ICC ... began back in the nineteenth
century when, in 1872, Gustav Moynier, one of the founders of
the International Committee of the Red Cross, proposed a permanent
court in response to the crimes of the Franco-Prussian War. After
the Nuremberg Judgment in 1946, there was renewed interest that
resulted in the establishment of an International Law Commission
(ILC), and an attempt was made at that time to create a Code of
Crimes. In 1948, the U.N. General Assembly adopted the Convention
on the Prevention and Punishment of the Crime of Genocide. Many
reports and drafts were prepared during the following years, but
the Cold War stymied all efforts.
Then in 1989, Trinidad and Tobago moved to resurrect the proposal
for a permanent court. In 1994, The ILC presented a draft statute
on an ICC to the U.N. General Assembly. Then followed more years
of Preparatory Committee meetings, which were attended by governments,
international law experts, and NGOs. In 1996, Italy's offer to
host an ICC conference was accepted and a July 1998 date was set.
In March 1998, as the conference neared, U.S. Senate Foreign
Relations Committee Chair Jesse Helms sent a letter to Secretary
of State Madeleine Albright, declaring that the ICC would be "dead
on arrival" in the Senate-unless the United States was given
veto control over the court. In an op-ed piece for the May 13
Washington Post, Lawyers Committee for Human Rights Chair Norman
Dorsen and Century Foundation/Twentieth Century Fund Senior Vice-President
Morton H. Halperin called the United States' position the most
serious roadblock in the way of the success of the Rome conference....
To ensure beyond all doubt that no American can be tried by the
ICC, the Clinton administration is insisting that there be an
affirmative vote of the U.N. Security Council-subject to a veto
by the five permanent members-before the court's prosecutors can
begin an investigation.
How can the United States, which purports to be "a nation
of laws," be respectful of the law yet simultaneously above
it? What must other nations, which have expressed a willingness
to subject themselves to the jurisdiction of the court, think
of the United States' refusal to do so? What ever happened to
its world leadership? Regardless of the Clinton administration's
position, what do U.S. citizens want? Perhaps this lapse in logic
can be overcome by the democratic process.
A number of other questions also had to be forcefully hammered
out for inclusion in the draft document: What will be the scope
of this new International Criminal Court? What will it do? Where
will it be located? Which crimes will it try? What will give it
power, and will nations willingly accept its jurisdiction? When
will it be in force? Who will have the right to bring charges?
Who will its judges be and from which countries will they be selected?
How can we trust their judgment? Will a nation willingly surrender
to the court one of its citizens to be tried? Will the ICC have
jurisdiction over those nations which choose not to participate?
What will constitute jurisdiction: the nation in which a crime
is committed, the homeland of the accused, or the homeland of
the victim? What penalties will the court impose? Will there be
Among the agreements reached were the following:
* The ICC shall be a permanent institution and shall have
the power to exercise its jurisdiction over persons for the most
serious crimes of international concern.
* The ICC shall be brought into relationship with the United
Nations through an agreement to be approved by an assembly of
states parties to this statute and the seat of the court shall
be established at The Hague in the Netherlands.
* The ICC has jurisdiction in accordance with this statute
with respect to the following crimes: the crime of genocide; crimes
against humanity; war crimes; and the crime of aggression.
The definitions of these crimes are spelled out in minute
detail. Genocide is defined generally as "deliberately inflicting
on the group conditions of life calculated to bring about its
physical destruction in whole or in part." Crimes against
humanity are defined as "enforced disappearance of persons,"
meaning arrest, detention or abduction of persons by, or with
the authorization of, a State or a political organization, followed
by a refusal to acknowledge that deprivation of freedom or to
give information on the fate or whereabouts of those persons,
with the intention of removing them from the protection of the
law for a prolonged period of time.
War crimes are defined as "grave breaches of the Geneva
Convention of 12 August 1949, namely, any of the following acts
against persons or property protected under the provisions of
the relevant Geneva Convention." This is followed by fifty-six
definitions of acts of aggression.
Terrorism and drug-related crimes were adopted into the document
in an annexed resolution, despite opposition from the United States,
and will be subject to definition at a review conference in the
future. The United States argued that, although bringing terrorism
and drug-related charges before an international court would not
in itself be a problem, other agencies are better equipped to
handle an ongoing investigation. Well, of course-at the present
time. But this is a rather circuitous argument, in as much as
the necessary investigative powers will be placed in the hands
of the ICC prosecutor at some future time.
What will constitute the court's power? Each sovereign nation
that signs the document will voluntarily relinquish certain state
powers and agree to abide by the decisions of the court. Even
heads of state and military leaders will be subject to the jurisdiction
of the court, and signatory nations are obliged to surrender their
own citizens if charged. Also, the new court cannot bring charges
retroactively; it can only try crimes that occur after the jurisdiction
of the court has been established.
It was also determined that penalties will not include capital
punishment because one cannot condone a crime for which one is
trying another person. The maximum penalty will be life imprisonment
and, for some, a maximum of thirty years imprisonment. Some nations
felt that such minimal prison time will make the court a laughingstock
in view of the gravity of the crimes being tried; they insisted
that executions were needed for a show of authority. Instead,
the court will emphasize the concepts of reparation and compensation
of victims. Provision has been made for a trust fund to be established
for the benefit of victims of crimes and their families. This
trust will be funded by fines and forfeiture of money and property.
One of the most crucial elements decided was who has the right
to bring charges. Can individuals-such as mothers of the disappeared-accuse
their tormentors, or must such charges be brought by the nation
in which the crime has occurred? Must the nation of the accused
be a party to the treaty and, if not, must it give voluntary consent
to the jurisdiction of the court before the accused can be tried?
Must all charges be funneled through and approved by the U.N.
The good news is that there will be an independent prosecutor,
who has the power to take initiative and investigate an alleged
crime. This is called the principle of 'proprio motu' and was
agreed upon by the majority of nations, again over the objections
of the United States, which feared an overwhelmed court. The bad
news is that this authority can be curbed by the U.N. Security
Council, which will have the right to delay investigation for
a renewable twelve-month period. And regrettably, no provision
has been made to protect any victims, witnesses, or evidence during
these periods. How can it be in the best interest of all nations
for such a disproportionate amount of power to be concentrated
in the hands of only five nations?
In addition to the Office of Independent Prosecutor, the ICC
will consist of the Presidency, the Registry, a Pre-Trial Division,
a Trial Division, and an Appeals Division. These offices will
be filled by eighteen judges of high moral character, only one
of whom may be nominated by each nation and elected by secret
ballot at an Assembly of States Parties. These judges must have
established competence in criminal law, international humanitarian
law, and the law of human rights and have "extensive experience
in a professional legal capacity which is of relevance to the
judicial work of the court." Generally, these judges will
serve for nine years and are to reflect an equitable geographical
and gender representation.
All of the still unanswered questions will be resolved in
time and with each new step in the development of the court, but
the remarkable accomplishment stands. And although the draft document-now
referred to as the Rome Treaty-is and will continue to be available
for ratification by the participating nations, the next official
step is for it to be reviewed and possibly adopted by the U.N.
General Assembly. Or perhaps it will be subjected to further negotiations.
It must be ratified by at least sixty participating nations in
order to make the new court a reality. However, as of October,
no nation had ratified the Rome Treaty and only fifty-three states
had formally signed it.
So where does the leading superpower of the free world stand
in this effort? Perhaps most telling is the report given by David
Scheffer, head of the U.S. delegation to the Rome conference and
ambassador-at-large, to the Senate Foreign Relations Committee
on July 23. In it, he describes the United States as "the
most powerful nation committed to the rule of law" but then
proceeds to explain in great detail how certain U.S. objectives
were not achieved and why the United States voted against the
" While we successfully defeated initiatives to empower
the court with universal jurisdiction, a form of jurisdiction
over nonparty states was adopted by the conference despite our
strenuous objections. In particular, the treaty specifies that,
as a precondition to the jurisdiction of the court over a crime,
either the state of territory where the crime was committed or
the state of nationality of the perpetrator of the crime must
be a party to the treaty or have granted its voluntary consent
to the jurisdiction of the court. We sought an amendment to the
text that would have required both of these countries to be party
to the treaty or, at a minimum, would have required that only
the consent of the state of nationality of the perpetrator be
obtained before the court could exercise jurisdiction. We asked
for a vote on our proposal, but a motion to take no action was
overwhelmingly carried by the vote of participating governments
in the conference.
We are left with consequences that do not serve the cause
of international justice. Since most atrocities are committed
internally and most internal conflicts are between warring parties
of the same nationality, the worst offenders of international
humanitarian law can choose never to join the treaty and be fully
insulated from its reach absent a Security Council referral. Yet
multinational peacekeeping forces operating in a country that
has joined the treaty can be exposed to the court's jurisdiction
even if the country of the individual peacekeeper has not joined
the treaty. Thus, the treaty purports to establish an arrangement
whereby U.S. armed forces operating overseas could conceivably
be prosecuted by the international court even if the United States
has not agreed to be bound by the treaty. Not only is this contrary
to the most fundamental principles of treaty law, it could inhibit
the ability of the United States to use its military to meet alliance
obligations and participate in multinational operations, including
humanitarian interventions to save civilian lives. Other contributors
to peacekeeping operations will similarly be exposed....
Finally, we were confronted on July 17 with a provision that
no reservations to the treaty would be allowed. We had long argued
against such a prohibition, and many countries had joined us in
this concern. We believed that at a minimum there were certain
provisions of the treaty, particularly in the field of state cooperation
with the court, where domestic constitutional requirements and
national judicial procedures might require a reasonable opportunity
for reservations that did not defeat the intent or purpose of
The U.S. delegation also sought to achieve other objectives
. . . that in our view are critical. I regret that certain of
these objectives were not achieved and therefore we could not
support the draft that emerged on July 17.
Because of some myopia, the founding document for the establishment
of a new international criminal court is not what NGOs had wanted;
much more was advocated. But it is a new beginning, and the tremendous
endeavor was not abandoned in despair-as was feared at many seemingly
insurmountable impasses. Many clashing concepts were ultimately
compromised in the overriding wish not to fail...
Beth K Lamont is the American Humanist Association's alternate
NGO representative to the United Nations.
Human Rights, Justice, Reform