Some Questions and Answers
On 17 July 1998 in Rome, 160 nations decided to establish
a permanent International Criminal Court to try individuals for the most serious
offences of global concern, such as genocide, war crimes and crimes against
humanity. Many felt the agreement was no less important than the adoption
of the United Nations Charter itself and it was hailed by United Nations Secretary-General
Kofi Annan as "a giant step forward in the march towards universal human rights
and the rule of law."
1. Why do we need another international court?
Why not use the International Court of Justice?
This century has seen the worst violence in the history
of humankind. In the past fifty years more than 250 conflicts have erupted
around the world; more than 86 million civilians, mostly women and children,
have died; and over 170 million people were stripped of their rights, their
property and their dignity. Most of these victims have been simply forgotten
and few perpetrators have been brought to justice.
In spite of rules and laws defining and forbidding
war crimes, crimes against humanity and genocide, along with various treaties
and conventions, protocols and codicils banning everything from poison gas
to chemical weapons, what has been lacking up to now, has been any system
for enforcing these norms and for holding individual violators criminally
responsible.
The United Nations General Assembly first recognized the need for a permanent
mechanism to prosecute mass murderers and war criminals in 1948, following
the Nuremberg and Tokyo trials after World War II, and it has been under discussion
at the UN ever since. Until now, however, attempts to create such a mechanism
have been unsuccessful despite the need for a permanent criminal court to
prosecute and punish those individuals committing the most serious crimes.
The International Court of Justice, the principal judicial organ of the United
Nations, was designed to deal primarily with disputes between States. It has
no jurisdiction over matters involving individual criminal responsibility.
2. How will the Court be different from the ad
hoc Tribunals for the Former Yugoslavia and Rwanda?
The two ad hoc Tribunals for the Former Yugoslavia
and Rwanda were created by the UN Security Council to deal with specific situations
after egregious crimes had been committed. The jurisdiction of these Tribunals
is limited to the time and the territories concerned. They were not intended
to address violations that occurred elsewhere or to prevent violations in
the future.
The International Criminal Court -- to be headquartered at The Hague, the
Netherlands -- will be a permanent institution not constrained by these time
and place limitations. It will be able to act more quickly than if an ad hoc
tribunal had to be established. As a permanent entity its very existence will
be a deterrent, sending a strong warning message to would-be perpetrators.
It will also encourage States to investigate and prosecute egregious crimes
committed in their territories or by their nationals, for if they do not,
the International Criminal Court will be there to exercise its jurisdiction.
3. How strong is the support for the creation of
an International Criminal Court?
One hundred and sixty States participated in the United
Nations Diplomatic Conference (held in Rome from 15 June to 17 July 1998)
which adopted the Statute establishing the International Criminal Court. Hundreds
of representatives of non-governmental organizations contributed to this process.
Fifty-five States, from all regions of the world, have already signed the
Statute. Many States were unable to sign immediately due to constitutional
requirements such as the need for prior approval by parliament, but are expected
to sign in the near future. The vast majority of States that sign are expected
to ratify. Sixty States need to ratify the Statute for the Court to come into
existence.
The draft text submitted to the Diplomatic Conference
was full of competing options and had over 1400 brackets indicating disagreement
on the text. Through working groups, informal negotiations and open debates,
a very delicately balanced text emerged; a generally agreed solution was found
for the many politically sensitive and legally complex issues. The Statute
and the Final Act were put forward as a complete "package" for adoption. This
package was the product of intense negotiations and judicious compromises
designed to reach widespread agreement. India and the United States tried
to amend the package. In each case, a "no-action motion" -- a procedural device
for not considering these amendments -- was adopted by an overwhelming majority.
For the no-action motion to stop the Indian amendment, the vote was 114 to
16, with 20 abstentions; to stop the United States amendment, the vote was
113 to 17, with 25 abstentions. The package was thus maintained and then agreed
in its entirety by a vote of 120 in favour, 7 against with 21 abstentions.
4. Why did some States vote against the Statute?
Seven States voted against the Statute in an unrecorded
vote so the names of the countries voting were not recorded. Three States
-- China, USA and Israel -- stated their reasons for voting against.China
thought that the power given to the pre-trial Chamber to check the Prosecutor's
initiative was not sufficient and that the adoption of the Statute should
have been by consensus, not by a vote.
The United States' principal objection was over the concept of jurisdiction
and its application over non-State parties. It also stated that the Statute
must recognize the role of the Security Council in determining an act of aggression.
Israel said that it failed to comprehend why the action
of transferring populations into an occupied territory was included in the
list of war crimes.
5. What crimes will the Court deal with?
The Court will deal with the most serious crimes committed
by individuals: genocide, crimes against humanity, and war crimes. These crimes
are specified in the Statute and are carefully defined to avoid ambiguity
or vagueness. Crimes of aggression will also be dealt with by the Court when
States Parties have agreed on the definition, elements and conditions under
which the Court will exercise jurisdiction.
Genocide covers those specifically listed prohibited acts (e.g. killing,
causing serious harm) committed with intent to destroy, in whole or in part,
a national, ethnic, racial or religious group.
Crimes against humanity cover those specifically listed prohibited
acts when committed as part of a widespread or systematic attack directed
against any civilian population. Such acts include murder, extermination,
rape, sexual slavery, the enforced disappearance of persons and the crime
of apartheid.
Genocide and crimes against humanity are punishable irrespective of whether
they are committed in time of peace or of war.
War crimes cover grave breaches of the Geneva Conventions of 1949 and
other serious violations, as listed in the Statute, committed on a large scale
in international armed conflicts.
In the past 50 years, the most serious violations of human rights have occurred,
not in international conflicts, but within States. Therefore, the Court's
Statute incorporates contemporary international humanitarian law standards
that criminalize, as war crimes, serious violations committed in internal
armed conflicts, excluding internal disturbances or riots.
The definitions of the crimes in the Statute are the product of years of hard
work involving many delegations and their experts. Each definition is precisely
formulated to reflect existing international law and is crafted to meet the
requirement of clarity in criminal justice. The Judges of the Court are required
to strictly construe the definitions and are not to extend them by analogy.
The aim is to establish objective international standards, leaving no room
for arbitrary decisions. In cases of ambiguity, the definitions are to be
interpreted in favour of the suspect or accused.
6. What about the crime of aggression?
Support was widespread from both States and the NGO
community at the Rome Conference for the inclusion of aggression as a crime.
However, there was not time to reach a definition of aggression that was acceptable
to all. As a result, the Statute provides that the Court may not exercise
jurisdiction over the crime of aggression until agreement is reached by States
Parties at a Review Conference on the definition, elements, and conditions
under which the Court shall exercise jurisdiction with respect to aggression.
Under the United Nations Charter, the Security Council has exclusive competence
to determine whether an act of aggression has been committed. It is provided
in the Statute that the final text on the crime of aggression must be consistent
with the relevant provisions of the UN Charter.
7. Will the Court prosecute sexual crimes?
Yes. The Statute includes crimes of sexual violence
such as rape, sexual slavery, enforced prostitution and forced pregnancy as
crimes against humanity when they are committed as part of a widespread or
systematic attack directed against any civilian population. They are also
war crimes when committed in either international or internal armed conflict.
In Rwanda and the former Yugoslavia, rape and gender-based
violence were widely used as weapons to inflict terror and to humiliate and
degrade the women of a particular ethnic group as well as the entire community
to which they belonged. In prosecuting cases of rape and other gender-based
violations, the ad hoc Tribunals found that victims were often afraid to come
forward with their stories and even feared being victimized by the process.
To help victims and witnesses face the judicial process, the International
Criminal Court will have a Victims and Witnesses Unit to provide protective
measures and security arrangements, counselling and other assistance for witnesses
and victims, while fully respecting the rights of the accused. The Court must
also take appropriate measures to protect the privacy, the dignity, the physical
and psychological well-being and the security of victims and witnesses, especially
when the crimes involve sexual or gender violence.
8. Will victims be entitled to compensation?
The Court will establish principles for reparations
to victims, including restitution, compensation and rehabilitation. The Court
is empowered to determine the scope and extent of any damage, loss and injury
to victims, and to order a convicted person to make specific reparation. A
Trust Fund may be established for the benefit of victims and their families.
Sources for the Fund will include money and other property collected through
fines and forfeiture imposed by the Court.
9. Will the court prosecute terrorist activities
and drug trafficking which are the most important crimes committed in many
parts of the world?
States could not agree on a definition of terrorism
at the Rome Conference. Some States considered that the prosecution of drug
crimes involved problems of investigation which would strain the resources
of the Court. Many others, however, argued that such prevalent and subversive
crimes should not escape the Court's jurisdiction. In response to this concern,
a resolution adopted at the Rome Conference recommends that the Review Conference
consider the inclusion of such crimes in the Court's jurisdiction. The Court
will thus be able to exercise its jurisdiction over the crimes of terrorism
and drug trafficking when they are so included by the Review Conference.
10. Can high-level government officials or military
commanders be prosecuted by the Court?
Yes. Criminal responsibility will be applied equally
to all persons without distinction as to whether he or she is a Head of State
or government, a member of a government or parliament, an elected representative
or a government official. Nor may such official capacity constitute a ground
for reduction of sentence.
The fact that a crime has been committed by a person
on the orders of a superior does not normally relieve that person of criminal
responsibility.
A military commander is criminally responsible for crimes committed by forces
under his/her command and control. Criminal responsibility also arises if
the military commander knew or should have known that the forces were committing
or were about to commit such crimes, but nevertheless failed to prevent or
repress their commission.
11. Will the Court be able to impose the death
penalty? Isn't that the most effective deterrent?
Consistent with international human rights standards,
the International Criminal Court has no competence to impose a death penalty.
The Court can impose lengthy terms of imprisonment of up to 30 years or life
when so justified by the gravity of the case. The Court may, in addition,
order a fine, forfeiture of proceeds, property or assets derived from the
committed crime.
Deterrence is not just effected by the death penalty. Deterrence is brought
about by the entire criminal justice process from investigation, followed
by prosecution, trial, delivery of the judgement, sentencing and punishment.
The publicity associated with a trial will have an additional deterrent effect.
12. When will the Court have jurisdiction over
crimes?
A State must first consent to become a party to the
Statute by ratifying or acceding to it. Once it is a party, it accepts the
Court's jurisdiction. This automatic jurisdiction represents a major advance
in international law because in the past, the acceptance of jurisdiction has,
in most cases, been subject to additional State consent. In the case of war
crimes, a State may withdraw its consent for seven years. However, this does
not affect the Court's jurisdiction when it is conferred by the Security Council
(see question 15).
The Court's jurisdiction will not be retroactive. It can only address crimes
committed after the entry into force of the Statute and the establishment
of the court.
The Court may exercise its jurisdiction over a specific case when either the
State in whose territory the crime was committed, or the State of the nationality
of the accused, is a party to the Statute. Non-party States may also accept
the Court's jurisdiction on a case-by-case basis. The Court will also have
jurisdiction over cases referred to it by the Security Council whether or
not the State concerned is a party to the Statute (see question 15).
13. Will the International Criminal Court infringe
on the jurisdiction of national courts?
No. The International Criminal Court will not supersede,
but will complement national jurisdiction. National courts will continue to
have priority in investigating and prosecuting crimes within their jurisdiction.
Under the principle of complementarity, the International Criminal Court will
act only when national courts are unable or unwilling to exercise jurisdiction.
If a national court is willing and able to exercise jurisdiction, the International
Criminal Court cannot intervene and no nationals of that State can be brought
before it except in cases referred to it by the United Nations Security Council
acting under Chapter VII of the UN Charter. The grounds for admitting a case
to the Court are specified in the Statute and the circumstances that govern
inability and unwillingness are carefully defined so as to avoid arbitrary
decisions. In addition, the accused and interested States, whether or not
parties to the Statute, may challenge the jurisdiction of the Court or admissibility
of the case. They also have a right to appeal any related decision.
14. Will the Court violate international law by
having jurisdiction over members of national forces or of peacekeeping missions?
Won't this make States unwilling to participate in peacekeeping operations?
No. Under existing international law, the State in
whose territory genocide, war crimes or crimes against humanity have been
committed, or whose nationals are victims of such crimes, has the right to
and is legally obligated to investigate and prosecute persons accused of committing
such crimes. The Court's Statute does not violate any principle of treaty
law and has not created any entitlements or legal obligations not already
existing under international law. The cooperation of a non-party State is
purely voluntary and no legal obligation is imposed on a non-party State.
The Court's Statute provides special protection for peacekeepers by prohibiting
intentional attacks against personnel, installations, material units or vehicles
involved in humanitarian assistance or peacekeeping missions. Such violations
constitute war crimes and, under certain circumstances, also crimes against
humanity. In addition, the Statute does not affect existing arrangements,
for example, with respect to UN peacekeeping missions, since the troop-contributing
countries continue to retain criminal jurisdiction over their members of such
missions.
15. What role will the UN Security Council have
in the Court's work?
The work of the Security Council and the International
Criminal Court will complement each other. The Court's Statute recognizes
the role of the Security Council in the maintenance of international peace
and security under the UN Charter by accepting that the Security Council,
acting under Chapter VII of the UN Charter, may refer a "situation" to the
Court when one or more of the crimes covered by the Statute appears to have
been committed. This would provide a basis for the Prosecutor to initiate
an investigation.
Since the referral of a situation by the Security Council is based on its
competence under Chapter VII which is binding and legally enforceable in all
States, the exercise of the Court's jurisdiction becomes part of the enforcement
measures. It's jurisdiction becomes binding even when neither the State in
whose territory crimes have been committed nor the State of nationality of
the accused is a party. In those instances, the International Criminal Court,
through investigation and prosecution, helps the Security Council in maintaining
peace. This jurisdiction, resulting from a Security Council referral, enhances
the role of the Court in enforcing international criminal law. At the same
time, the Court's jurisdiction is expanded to cover even non-party States,
in these instances.
The Security Council may request that the Court defer
an investigation or prosecution for a renewable period of 12 months when it
is exercising its Chapter VII peace-making or enforcement powers. This deferral
is to ensure that the Security Council's peace-making efforts will not be
hindered by the Court's investigation or prosecution.
16. How independent will the Prosecutor be?
An independent Prosecutor, with the power to initiate
investigations when sufficient evidence points to serious violations, was
widely supported during negotiations at the Rome Conference. While the Prosecutor
may initiate such investigations, detailed provisions are included in the
Statute to ensure proper checks and balances with respect to this power. In
the first place, the Prosecuter must defer to States willing and able to pursue
their own investigation. Before initiating an investigation, the Prosecutor
is required to submit all supporting materials collected and to obtain permission
from the Pre-Trial Chamber, composed of three judges. The suspect and the
States concerned also have the right to challenge at the investigative stage
action taken by the Prosecutor. States and the accused can also challenge
the jurisdiction of the Court or the admissibility of the case at the trial
stage. These measures provide ample opportunity to ensure that the case is
substantial and deserves investigation and prosecution by the Court.
The Prosecutor will be elected by secret ballot by the States Parties and
must meet stringent qualifications: she or he must possess the highest moral
character, competence and experience in the prosecution or trial of criminal
cases. The Prosecutor will not be allowed to participate in any case in which
his or her impartiality may be doubted. Any question concerning disqualification
will be decided by the Court's Appeals Chamber. The Assembly of States Parties
has the power to remove the Prosecutor if he or she is found to have committed
serious misconduct or a serious breach of duties.
17. What guarantee is there that suspects will
receive due process and a fair trial?
The Court's Statute creates a true international criminal
justice system. It will provide impartial and qualified judges, due process
and fair trials to individuals accused of crimes falling within the jurisdiction
of the Court. The Statute recognizes a full range of rights of the accused,
and even extends the standards embodied in major international human rights
instruments.
There are some particular advantages to the Statute. One is the screening
mechanisms by the investigative and prosecutorial organ and the judicial organ
of the Court, which are designed to protect innocent individuals from frivolous,
vexatious or politically motivated criminal investigations or prosecutions.
In addition, the persons who are entrusted with making decisions relating
to the initiation of a criminal investigation or trial must possess the highest
qualifications of competence, independence and impartiality. Every individual
will be entitled to the highest international standards and guarantees of
due process and fair trial.
In addition, the Statute also contains elaborate provisions
(over 60 articles) on criminal law principles, investigation, prosecution,
trial, cooperation and judicial assistance and enforcement. These provisions
required the harmonization of divergent and sometimes diametrically opposed
national criminal laws and procedures. It is an important achievement that
agreement was reached on these highly technical matters. As the product is
a truly international criminal justice system, it provides the highest standard
of protection for individuals before the Court.
18. What guarantee is there that judges will be
qualified and impartial? What safeguards are included to prevent outside political
influence on the Court?
Judges must possess the highest professional competence
and must be chosen from among persons of high moral character, impartiality
and integrity who possess the qualifications required in their respective
States for appointment to the highest judicial offices. They must also be
independent in the performance of their functions, and cannot engage in any
activity that is likely to interfere with their judicial functions or to affect
confidence in their independence.
The Court will have 18 judges with competence in criminal law and procedure,
and the necessary relevant experience in criminal proceedings. In addition,
judges will have competence in relevant areas of international law such as
international humanitarian law and human rights law. To ensure that the composition
will be truly balanced and international, their election must take into account
the need to represent the principal legal systems of the world, equitable
geographical representation, a fair representation of female and male judges,
and expertise on violence against women or children. No two judges may be
nationals of the same State and judges may only serve one nine-year term.
They will be elected by secret ballot, by the highest number of votes but
no less than two-thirds of the States Parties present and voting.
A judge may be removed from office if he or she is found to have committed
serious misconduct or a serious breach of his or her duties. All these safeguards
are intended to ensure independence, integrity and competence and to prevent
outside political influence.
19. To whom is the Court accountable? And how will
this affect its independence?
The States Parties oversee the work of the Court and
will provide management oversight regarding the administration of the Court
to the President, the Prosecutor and the Registrar, decide on the budget for
the Court, decide whether to alter the number of judges, and consider any
questions relating to non-cooperation. The States Parties cannot interfere
with the judicial functions of the Court. Any disputes concerning the Court's
judicial functions are to be settled by a decision of the Court itself.
20. What are a State Party's obligations under
the Statute?
States party to the Statute are required to assist
and cooperate fully with the Court in all stages of its work and to respect
international standards regarding the rights of victims, suspects and accused
in investigations, prosecutions and trials. If a State Party refuses to comply
with a request to cooperate, the Assembly of States Parties or the Security
Council may review the matter.
21. What contribution did Non-Governmental Organizations
make to the establishment of the Court?
A large coalition of NGOs has been involved since
1995 in the process of establishing the Court. They developed close working
relations with delegations, organized briefings for the Conference participants
and published pamphlets, reports and papers on various topics of special interest.
They provided a substantive contribution to the work of the Conference and
a momentum to its successful negotiations. It is expected that many will be
active in the campaign to get the Statute ratified by as many States as possible.
22. What must still be done before the Court comes
into operation?
A Preparatory Commission will begin work in early
1999 to prepare proposals for practical arrangements for the entry into force
of the Statute -- once it is ratified by 60 States -- and for the establishment
of the Court. The Commission will take up such matters as elements of crimes,
rules of procedure and evidence, and rules of the Court. All these are critical
to the manner in which the Statute will actually be applied and implemented.
The Commission will also be involved in making arrangements for the physical
establishment of the Court. Participation in the Preparatory Commission is
open to all States even those that have not signed the Statute. The Secretary-General
is requested to provide to the Commission such necessary resources as it may
require, subject to the approval of the General Assembly.
Published by the United Nations Department of Public
Information
DPI/2016--October 1998