Despite shortcomings, a court deserving support.

• Author: Arbour, Louise
• Position: International Criminal Court

Fifty years of collective efforts by the United Nations have finally led to the establishment of the foundation of what may become an effective and independent international criminal jurisdiction. For the jurisdiction to become a reality, 60 ratifications are required and an interim Preparatory Commission must successfully draft the detailed legal infrastructure of the International Criminal Court (ICC), as well as important texts such as the relationship agreement between the United Nations and the Court as an independent intergovernmental organization, and the financial regulations and rules of the Court. Once this is done, the international community will have at its disposal a permanent mechanism for the enforcement of individual criminal responsibility for serious violations of international humanitarian law committed on the territory of States party to the Statute or by their citizens.

One positive distinguishing feature of this mechanism is the provision for an ex officio power of the Prosecutor and Pre-Trial Chamber to initiate investigations based on information received from any source. This will facilitate an earlier response by the Prosecutor to allegations of war crimes of international concern than when situations are referred to the Court by the Security Council or by States party. Lives and evidence can be saved.

The subject-matter jurisdiction of the Court is limited to war crimes, crimes against humanity and genocide in a manner similar to the ad hoc Tribunals for the former Yugoslavia and for Rwanda, with the addition of the crime of aggression, the elements and jurisdictional attributes of which are to be determined later. Given the frequency of civil wars our times, it is distinctly positive that Article 8 of the Statute provides for the inclusion of prohibitions which apply also in conflicts not of an international character. This increases the relevancy of the Court to future armed conflicts.

We must also consider the many shortcomings of the Statute, a few of which are of such fundamental nature that they may erode the efficacy of the Court. For prosecutors, the weak State cooperation regime is an immediate source of concern. How can cases be prepared effectively if the Prosecutor of the ICC cannot control the process of the gathering of evidence? The main principle of the Statute is that the authorities of the requested State will execute requests for assistance from the Court and thus collect the evidence through...