Stoelting, David

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Southern Methodist University

The Rome Treaty on the International Criminal CourtDAvm STOELTING*The United Nations Diplomatic Conference of Plenipotentiaries on the Establishment ofan International Criminal Court, hdd in Rome, Italy, from June 15-July 17, 1998, was amilestone in international law. Following the five week diplomatic conference, the governmentsof 120 countries voted in favor of a multilateral treaty that will establish the world's firstpermanent International Criminal Court (ICC) to try individuals accused of genocide, warcrimes, and crimes against humanity.' In the six months after the conference, seventy-fivegovernments have signed the treaty and, in February 1999, Senegal became the first countryto ratify. The treaty enters into force upon ratification by sixty countries.The Rome ICC treaty is a historic devdopment in international law.2 The court had beenunder discussion among governments in a series of U.N. meetings since 1995. Despite theseextensive preparatory talks, most of the key issues were unresolved heading into the Romeconference. Thus, it is astonishing that the 120 countries voting in favor of the treaty achievedconsensus despite widely varying legal traditions and systems of criminal justice. Uniting thedelegations was an abhorrence that "during this century millions of children, women and menhave been victims of unimaginable atrocities that deeply shock the conscience of humanity. 'The United States, however, was one of only seven countries in opposition.' The irony ofthis opposition is inescapable. The United States spearheaded the creation of the Nuremberg,Tokyo, Rwanda, and Yugoslavia international tribunals. President Clinton frequently spoke'David Stoeting is with Morgan, Lewis and Bockius in New York City. He is Vice Chair of the InternationalCriminal Law Committee. A version of this article originally appeared in the August 28, 1998, edition of NewYork Law Journal.© 1998 NLP IP Company.1. A voice vote taken late in the evening on July 17 resulted in 120 countries voting in favor, twentycountries abstaining and only seven opposed.2. The drive to create an international criminal tribunal began following the Nuremberg and Tokyo trialsafter World War 1U, but efforts foundered until the end of the Cold War. The Security Council's creation oftwo international criminal tribunals in 1992 and 1994 in response to atrocities in the former Yugoslavia andRwanda provided a crucial impetus to the ICC proposal.3. United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an InternationalCriminal Court, Draft Statute for the International Criminal Court, U.N. Doc. A/CONF.183/C.I/L.76, atPreamble (1998) [hereinafter Rome Treaty], avtailabk in 37 I.L.M. 999 (1998), or <www.un.org/icc>.4. The United States, Israel, and China voted against the treaty. The remaining countries voting "no"reportedly were Quata, Yemen, Libya and Iraq.614 THE INTERNATIONAL LAWYERin favor of the ICC, and had appointed David J. Scheffer as the first-ever Ambassador-at-Largefor War Crimes Issues to focus the administration's efforts. Since 1995, the U.S. delegationparticipated extensively in all the preparatory negotiations. The Rome treaty also bears theimprint of numerous American proposals generated by the top-flight U.S. ddegation led byAmbassador Scheffer.In Rome, however, the U.S. negotiators had almost no flexibility to join the worldwideconsensus, and became increasingly isolated during the conference. The United States neverbudged from its position that the ICC should operate only with the approval of the U.N.Security Council, where the United States has a veto. The conference, however, overwhelminglywanted a court able to proceed independently from Security Council control. The UnitedStates also consistently opposed any possibility that American peacekeeping forces stationedabroad could be subjected to ICC jurisdiction. Finally, the Senate's hostility to the ICC treatymakes dear that the current Senate will never give its advice and consent to ratification. JesseHelms, Chairman of the Senate Foreign Relations Committee, had already called the ICCtreaty "dead-on-arrival."' In Senate hearings on the Rome conference held on July 23, 1998,Senator Rod Grams used inflammatory rhetoric in blasting the ICC as "truly a monster...[and] a monster that must be slain." 6 Senator John Ashcroft similarly denounced the ICC "asa clear and continuing threat to the national interest of the United States."7 Thus, the U.S.negotiating posture throughout the Rome Conference was rigid, and in the final days theconference failed to bend to the American position. The result was diplomatic isolation.The ICC will be the last major international institution created this century. The seat ofthe ICC will be The Hague but trials elsewhere will be permitted. The court will consist offour organs: (1) the Presidency, composed of three judges, serving an administrative role withrespect to judicial functions; (2) an Appeals Division, a Trial Division and a Pre-Trial Division;(3) a Prosecutor's Office; and (4) a Registry, the administrative arm.There will be eighteen judges, serving nine-year non-renewable terms. Judges, nominatedby countries that ratify the ICC treaty (states parties) and elected by a two-thirds vote, shallbe "persons of high moral character, impartiality and integrity who possess the qualificationsrequired in their respective States for appointment to the highest judicial offices." 'The Pre-Trial Chamber, which essentially serves as a check on the powers of the Prosecutor,is an institution that derives from the civil law tradition, although many of its functions aresimilar to that of a grand jury in the common law system. The Pre-Trial Chamber reviewsevidence submitted by the Prosecutor and authorizes arrest warrants if "reasonable grounds"exist that the person has committed a crime within the ICC's jurisdiction. Once a defendantappears before the Court, the Pre-Trial Chamber must conduct a "confirmation hearing" inorder to examine the evidence and "determine whether there is sufficient evidence to establishsubstantial grounds to believe that the person has committed each of the crimes charged."'An ICC investigation may be commenced either by the Security Council, a state party orby the Prosecutor acting under the so-calledproprio motu power. Inherent constraints, however,5. Letter from Jesse Helms, United States Senate Committee on Foreign Relations, to The HonorableMadeleine K. Albright, U.S. Secretary of State (Mar. 26, 1998).6. Statement of Senator Rod Grams, Subcommittee on the Creation of the International Criminal Court,Hearing on the Creation of the International Criminal Court (July 23, 1998).7. Statement of SenatorJohn Ashcroft, Subcommittee on the Creation of the International Criminal Court,Hearing on the Creation of the International Criminal Court (July 23, 1998).8. Rome Treaty, supra note 3, art. 36(3a).9. Id. art. 61(7).VOL. 3 3, NO. 2PUBLIC INTERNATIONAL LAW 615limit investigations initiated by a state party or the Prosecutor. Because of the binding natureof Security Council resolutions under international law, these constraints do not apply to casesinitiated by the Security Council.For example, before launching a propnio motu investigation, the Prosecutor must submit tothe Pre-Trial Chamber a "request for authorization," which may be granted if the Pre-TrialChamber determines both that there is a "reasonable basis to proceed" and that "the caseappears to fall within the jurisdiction of the Court."'0 In addition, the Security Council isafforded the power to stop, for renewable one-year periods, investigations or prosecutions."Other constraints are reflected in the treaty's provisions on "admissibility" and state consent,and are described below.The ICC will try individuals accused of genocide, war crimes, and crimes against humanity.The inclusion of genocide, as defined in the 1949 Genocide Convention, engendered almostno controversy. The debate over war crimes focused on the efforts of the United States andother governments to ensure that the ICC prosecutes only large-scale war crimes, as opposedto isolated instances. Thus, the treaty provides that war crimes must be "committed as a partof a plan or policy or as part of a large-scale commission of such crimes."' 2War crimes committed in internal, as well as international, armed conflicts are within thejurisdiction of the ICC. Many delegations also were committed to including a gender perspectivein the treaty, which resulted in the inclusion of "forced pregnancy," '"I rape and other formsof sexual violence as war crimes and crimes against humanity. In an awkward compromise,though, poison gas and exploding bullets are punishable, but not nuclear weapons, landmines,or chemical weapons.Crimes against humanity must be a "widespread or systematic" part of a plan or policyand directed against civilians. Specific acts included as crimes against humanity are murder,extermination, enslavement, and enforced disappearances. The crime of aggression is nominallyincluded, but prosecutions for aggression are barred until the treaty can be amended by statesparties to provide for an adequate definition.The ICC's exercise of jurisdiction is circumscribed by a complex set of provisions relatingto "admissibility" and state consent. The admissibility provisions ensure that the ICC functionsonly with respect to the most serious international crimes when national courts are unavailableor unwilling to prosecute. In general, a case is "inadmissible" if a state with jurisdiction isalready investigating (unless that state "is unable or unwilling genuinely to carry out the investiga-tion"); or if a state has made a good faith decision not to investigate; or if the accused hasalready been tried for the conduct alleged. A case is also inadmissible if it is "not of sufficientgravity to justify further action by the Court."'"Admissibility may be raised during the initial investigation. Thus, ifa state notifies the Courtthat it is investigating or already has investigated the alleged crimes, the Prosecutor is requiredto defer to that state unless the Pre-Trial Chamber authorizes the investigation.'10. Id. an. IS (3-4).i. Id. ar. 16.12. Id. an. 8(l).13. "Forced pregnancy" is defined as "the unlawful confinement, of a woman made forcibly pregnant, withthe intent of affecting the ethnic composition of any population." Id. an. 7(2XF).14. Id. art. 17(IXd).15. Id. art. 18(2). If the Pre-Trial Chamber authorizes an investigation despite a state's notification that italready is investigating, that state may appeal on an expedited basis to the Appeals Chamber. d. art. 18(4).SUMMER 1999616 THE INTERNATIONAL LAWYEROnce an arrest warrant has been issued, the admissibility of a case may be raised by theCourt, by the accused, by a state with jurisdiction over the crime, or by a state from whichacceptance of jurisdiction is required. Challenges to admissibility are referred to either thePre-Trial Chamber (prior to confirmation) or to the Trial Chamber (after confirmation) andmay in all cases be appealed to the Appeals Chamber.State consent provisions provide another significant check on the ICC's exercise of jurisdiction.(Consent is given by the act of ratification, although non-ratifying states may consent by filinga formal declaration accepting the ICC's jurisdiction in a particular case.) These provisionsrequire that in investigations launched by a state party or the Prosecutor, the ICC must havethe consent of either: (1) the state on whose territory the crime occurred; or (2) the state ofthe nationality of the accused. Without the consent of one of these states, and in the absenceof a Security Council referral, the ICC cannot act.The state consent provisions generated significant controversy during the conference. Inparticular, a proposal that would have facilitated the exercise of jurisdiction by allowing theconsent of a third-party state with custody over an accused person was dropped in the finaldays. Thus, it could be argued that war criminals with the ability to travd can easily avoidthe reach of the ICC. The United States also argued for a provision, which the conferencedramatically voted down in the final minutes, requiring in every instance the consent of thestate of nationality of the accused. Another controversy has ensued over a last-minute provision,added at the behest of France and Great Britain, that allows state's parties to opt out of warcrimes prosecutions for seven years after ratification.The rules of procedure and evidence will be adopted by state's parties once the treaty entersinto force. The treaty also contains comprehensive provisions protecting the rights of defendants.Among other rights, persons under investigation have the right to remain silent, a presumptionof innocence, the right to legal assistance, and the right to be questioned only in the presenceof counsel. There will be no death penalty or trials in absentia.The consensus in Rome demonstrates a commitment to a strong and independent internationalcriminal court. The treaty, however, has a number of provisions that may allow states or theSecurity Council to hinder investigations and delay prosecutions. The conference also highlightedthe isolation of the United States from its allies on this fundamental issue. Nevertheless, theRome treaty stands as a giant step toward a just rule of law at the dose of a century wracked byunparalleled injustice. Those governments that favor an effective ICC must dedicate themselves tomaking the promise of Rome a reality.VOL. 3 3, NO. 2

The Rome Treaty on the International Criminal Court

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The Rome Treaty on the International Criminal Court

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