Introduction

Author:Max du Plessis; Ben Brandon; Kimberly Prost

This Guide arises out of, and is a response to, the creation of the world's first permanent International Criminal Court (ICC). The Statute of the ICC was adopted on 17 July 1998 by an overwhelming majority of the States attending the Rome Conference. The conference was specifically aimed at attracting States and non-governmental organisations so that they might debate and adopt a statute that would form the basis for such a court .1

The ICC and the Human Rights Inspiration

The general rule in international law is that States are able to exercise their domestic criminal law jurisdiction over criminal offences that affect their domestic concerns .2 As such, criminal jurisdiction is usually exercised over crimes that are committed within a State's territory (like murder, theft and rape). It may also sometimes be exercised over crimes that are plotted abroad (such as high treason) because they threaten the domestic order.

However, some offences affect not only the domestic legal order but also the international legal order. The classic example of such a crime is piracy, whose perpetrators were described as enemies of the human race. Today, certain crimes are agreed to be of such a serious nature that their perpetrators are also rightly considered enemies of humankind. The crimes that fall under the ICC's jurisdiction are drawn from this category and include genocide, crimes against humanity and war crimes.

Because there has not until recently been a permanent international criminal court with jurisdiction to try these crimes, and leaving aside isolated examples such as the international criminal tribunals at Nuremberg and Tokyo, it was previously left to national courts to do the job. Where a national court exercised jurisdiction over an international crime with no jurisdictional link on the basis of, for example, territoriality or nationality, it was said to be exercising 'universal jurisdiction'. Perhaps the most famous example of this is the trial of Adolf Eichmann. In A-G of Israel v Eichmann, 3 the District Court of Jerusalem decided that Israel had jurisdiction over atrocities committed during World War II by Eichmann, a Nazi officer, on the grounds that the said atrocities were not domestic crimes alone but crimes against the law of nations.

As we shall see, under the ICC Statute an important role has been retained for domestic courts, which are said to act in a complementary relationship with the Court in punishing the world's worst criminals.4 But where such courts are not willing or able to act against the enemies of humanity, the ICC ensures that impunity does not follow their actions. The rise of a court with the power and competence to try the likes of Eichmann, Pinochet or Mengistu, or their foot soldiers, torturers or henchmen, can only be properly appreciated against the backdrop of the immense strides that human rights and humanitarian law have taken in the 20th century.

Aspirations to establish such a permanent international criminal court can be traced back to shortly after World War II and the adoption by the newly created United Nations, on 9 December 1948, of a resolution mandating the International Law Commission (ILC) to begin work on a draft statute for such a court.5 In the climate of the Cold War, little was done to take the project forward, however, and the idea of an international criminal court was revivified only in the 1980s with a proposal by Latin American and Caribbean States, led by Trinidad and Tobago, who envisaged it as their last resort to prosecute international drug traffickers.6 The ILC was thereafter directed by the UN General Assembly to again consider drafting a statute.

The early 1990s saw the Commission preparing the draft, and by 1994 it had adopted a formal Draft Statute for an International Criminal Tribunal and forwarded it to the General Assembly for consideration.7 At the same time, events compelled the creation of a court on an ad hoc basis to respond to the atrocities that were being committed in the former Yugoslavia. The International Criminal Tribunal for the former Yugoslavia (ICTY) was established by the Security Council in 1993 and mandated to prosecute persons responsible for serious violations of international humanitarian law committed in that territory since 1991.8 Then, in November 1994, and acting on a request from Rwanda, the Security Council voted to create a second ad hoc tribunal, charged with the prosecution of genocide and other serious violations of international humanitarian law committed in Rwanda and in neighbouring countries during 1994.9

The Yugoslav and Rwandan Tribunals were important milestones in international criminal law. Not only were the Tribunals necessary responses to the atrocities that had been committed in these countries, they also fuelled the widespread belief that a permanent international criminal court was both desirable and practical. The ICTY Statute, for example, influenced the draft Statute that the ILC was busy drawing up in the early 1990s. By the time delegates convened in Rome, the Tribunals could provide a reassuring model of what a permanent international criminal court might look like. These two Tribunals -the first international criminal tribunals since Nuremberg - are close relatives, sharing virtually identical statutes, as well as the same Prosecutor and Appeals Chamber. One of their most important features has been the independence of the prosecutors. Indeed, the integrity, neutrality and good judgment of the Tribunals' prosecutors, Richard Goldstone and his successors, Louise Arbour and Carla del Ponte, answered the critics who warned of a reckless, rogue and irresponsible prosecutor. Most significantly, for our purposes, is that the Tribunals stand together as a working model of international criminal justice. Unpacked, this model has certain defining characteristics that draw their inspiration from the rule of law: an international criminal forum applying rules of international law, staffed by independent prosecutors and judges, holding persons individually responsible for crimes against humanity and war crimes, after allowing them a fair trial.

The ICC displays all these features but, unlike its ad hoc predecessors, it is a permanent tribunal. After five weeks of intense negotiations in Rome, 120 countries voted to adopt the treaty, seven voted against it and 21 abstained. A number of important Commonwealth States were among those that supported the adoption of the treaty, which would come into force upon 60 ratifications. The magic number was reached by April of 2002. To date, the Rome Statute has been signed by 139 States and 97 States have ratified it. The Statute entered into force on 1 July 2002, at which time the Court's jurisdiction over genocide, crimes against humanity and war crimes took effect.

The ICC is situated in The Hague, the Netherlands. The judges for the Court were chosen in February 2003 and were sworn in on 11 March 2003 at its inaugural session. The President is the Canadian Philippe Kirsch. The Prosecutor has been chosen -...

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