50th Agenda 

50th Session Issues

Resolving the Remaining Issues Relating to the Establishment of an International Criminal Court

by
Janet Slanczka

The United Nations General Assembly first recognized the need to establish an International Criminal Court in resolution 260 of 9 December 1948, which adopted the Convention on the Prevention and Punishment of the Crime of Genocide. Article I of that convention declared genocide as "a crime under international law" and article VI provided that persons charged with genocide "be tried by a competent tribunal of the State in the Territory of which the act was committed or by such international penal tribunal as may have jurisdiction." In the same resolution, the International Law Commission was invited "to study the desirability and possibility of establishing an international judicial organ for the trial of persons charged with genocide."

The ILC concluded that the establishment of an international court to try any persons charged with genocide or other crimes of similar gravity was both desirable and possible. The General Assembly established a committee to prepare proposals relating to the establishment of such a court. The committee prepared a draft statute in 1951 and a revised statute in 1953. The General Assembly decided to postpone consideration of the draft statute pending the adoption of a definition of aggression.

The question of the International Criminal Court has been considered periodically in the years since. In December 1989, the General Assembly asked the ILC to resume work on an International Criminal Court with jurisdiction to include drug trafficking. With the eruption of the conflict in the former Yugoslavia, war crimes, crimes against humanity and genocide came to international attention. The UN Security Council established the ad hoc International Criminal Tribunal for the Former Yugoslavia to hold individuals accountable for those atrocities. Added to this was the situation in Rwanda.

The ILC submitted its draft statue for an international criminal court to the General Assembly in 1994. The General Assembly established the Ad Hoc Committee on the Establishment of an International Criminal Court, which met twice in 1995, to consider major substantive issues arising from the draft statute . After the GA considered the Ad Hoc Committees report, it created the Preparatory Commission on the Establishment of an International Criminal Court to prepare a widely acceptable consolidated draft text for submission to a diplomatic conference. The preparatory Committee met from 1996-April 1998 and completed a draft text (A/CONF.183/2/Add.1).

At the 52nd Session, the General Assembly decided to convene the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court in Rome, Italy, from 15 June to 17 July 1998 to finalize and adopt a convention. The statute (A/CONF.183/9*) was adopted on 17 July 1998 by 120 of 160 countries in attendance and opened for signature by all states in Rome. On 17 October 1998, the Statute was opened for signature at UN Headquarters in New York until 31 December 2000. As of 26 June 1999, 82 countries have signed the Statute and 3 countries have processed it through their governments for ratification.

The statute specifically defined the crime of genocide, crimes against humanity, war crimes, and the crime of aggression; however, no agreement on a definition for aggression occurred before adoption of the statute. The International Criminal Court assumes jurisdiction when a State Party refers crimes to the Prosecutor, when the Security Council refers a situation to the Prosecutor, or when the Prosecutor has initiated an investigation under article 15.

The first session of the Preparatory Commission for the Court was held 16-26 February 1999 (Summary Report of Proceedings of the Preparatory Commissionà; PCNICC/199/L.3/Rev.1). It developed rules of procedure and evidence for Investigation and Prosecution. Elements of the crime of genocide (Article 6) and War Crimes (Article 8) were proposed. The commission undertook a preliminary consideration of the modalities of discussion for a definition of the crime of aggression listed in article 5, paragraph 2, of the Rome Statute. One proposal for consideration on the definition of aggression was submitted by Bahrain, Iraq, Lebanon, the Libyan Arab Republic, Oman, the Sudan, the Syrian Arab Republic and Yemen (PCNICC/1999/DP.11)

The meetings scheduled for 26 July-13 August and 29 November- 17 December will continue the work on the rules of procedure and evidence and elements and add the issues of financial regulations and rules, an agreement on the privileges and immunities of the court, a budget for the first financial year, and the rules of procedure of the Assembly of States parties.

Specifically, the ILC is asked to develop a politically acceptable definition of aggression. Also to be considered in this definition is the Security Council's role in identifying aggression. The definition must itemize crimes of aggression, define appropriate terminology, and list the circumstances under which the court exercises jurisdiction with respect to the crime. (A/CONF/183.9*, Article 5, paragraph 2 - use Articles 6, 7 and 8 as examples)

Another question is that of the Court's rules of procedure and evidence. In other words, how shall the court conduct its day-to-day proceedings? The very nature of the court differentiates it from the ICJ as it will judge innocence or guilt to the criminal charges. Guidelines for court procedures are in the Statute.

The ILC may want to consider the additional issues of crimes of terrorism, crimes against United Nations and associated personnel and crimes involving the illicit traffic in narcotic drugs and psychotropic substances as being under the jurisdiction of the international criminal court. These issues were not specifically included in the adopted Statute but were raised in the earlier draft for the convention/statute (A/CONF.183/2/Add.1)

Sources

www.un.org/  International Law

A/CONF.183/9a Rome Statute of the International Criminal Court of 17 July 1998 (88 pages)

A/CONF.183/2/Add.1 Draft Statute for the International Criminal Court (173 pages)

A/CONF.183/3 Annex: General Assembly resolution 52/160 of 15 December 1997

Establishment of an international criminal court - A/RES/51/207 Resolution Adopted by the General Assembly {on the report of the Sixth Committee (A/51/627)}

A/RES/52/160 Resolution Adopted by the General Assembly {on the report of the Sixth Committee (A/52/651)}

A/RES/53/105 Resolution Adopted by the General Assembly (on the report of the Sixth Committee (A/53/634)} Establishment of the international criminal court

Other documents of interest from the Rome Conference of July 1998:

A/CONF.183/10* Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court www.un.org/ilc/icc  Public Information, Overview,

Questions and Answers, Plans for International Criminal Court gather momentum, Press Releases, Photo

Releases: Basic Information on the Rome Statute of the International Criminal Court

PCNICC/1999/L.3/Rev.1 Proceedings of the Preparatory Commission at its first session (16-26 February 1999)