LSB July 2018_Web

INTERNATIONAL LAW
Twenty years of the Rome
Statute for the International
Criminal Court
DR RODERICK O’BRIEN, ADJUNCT RESEARCH FELLOW,
SCHOOL OF MANAGEMENT, UNIVERSITY OF SA
On 17 July, 1998 representatives of
states who gathered at a United
Nations Conference in Italy agreed on
the text for a treaty for the proposed
International Criminal Court (ICC): thus
the Rome Statute. The final voting was
120 to 7, with 21 abstentions. This was a
beginning.
There had been proposals over the
years for such a court, at least as early as
the proposal by Gustave Moynier (one
of the founders of the Red Cross) in
1872. Moynier, a Swiss, was responding
to the brutality of the Franco-Prussian
War (1870 to 1871). Other conflicts
resulted in proposals for such a court.
In response to the Second World War,
trials were held at Nuremburg and Tokyo,
which were another step on the way.
Proposals for a truly international court
included jurisdiction for international
drug trafficking, for piracy, as well as
for war crimes. The International Law
Commission prepared drafts for the
constitution of such a court, but these did
not make progress during the Cold War.
The end of the Cold War brought new
possibilities, and ad hoc international or
hybrid tribunals were established, including
the International Criminal Tribunal for the
former Yugoslavia, and the International
Criminal Tribunal for Rwanda. The
International Law Commission again
prepared a draft for an international
criminal court, and the United Nations
sponsored rounds of negotiations. The
final draft included only four crimes:
genocide, crimes against humanity, war
crimes, and the crime of aggression. But
the parties could not agree the definition
of the crime of aggression, and this was
deferred.
While the final voting for the treaty was
by a large margin, ratifications by the
required sixty states came more slowly. In
2002, that number was reached, and the
treaty came into force on 1 July, 2002. The
ICC was established at the Hague, in the
Netherlands. Learning from the experience
of past tribunals – and understanding what
is politically possible – the tribunal has
set about its task slowly. It has jurisdiction
only over individuals (not states or
organisations), but that jurisdiction
includes heads of state.
A special feature of the court’s
jurisdiction is the principle of
complementarity. The court does
not replace national jurisdiction but
complements it when the state is unable or
unwilling to exercise its own jurisdiction,
or when the state chooses to allow the
ICC to have jurisdiction. The outcome to
date is only a handful of convictions, yet
the existence of the ICC, and the threat
of its jurisdiction produces impassioned
responses.
One of the achievements of the Court
is the establishment of the Trust Fund for
Victims. Systems of criminal justice seem
to put the prosecution process, and thus
the defendant, at the centre of the judicial
stage. The victim is simply a complainant,
and perhaps not even a witness. The
Trust Fund for Victims goes some way
to recognise that the crimes before the
International Criminal Court involve real
victims, many of whom have suffered
from great brutality. The Trust Fund for
Victims is not for every victim of crime
but is limited to those cases actually before
the Court.
Another achievement has been to agree
on a definition of aggression. The states
party eventually agreed on a definition at
a Review Conference in Kampala in June
2010, and this agreement will come into
force on 17 July, 2018. The agreement is
hedged with many pre-conditions to the
exercise of jurisdiction.
Even before the Statute was agreed in
Rome, there has been vocal criticism of the
ICC. These criticisms include claims that:
• The ICC suffers from a lack of
legitimacy, because some significant
states have not supported it from the
beginning or have withdrawn their
support. From our own area, China,
India, Indonesia, Malaysia, and Pakistan
are among non-signatories, while other
states including Russia and the United
States of America, have signed but will
not ratify the Statute. The President
of the Philippines has announced that
the Philippines will no longer accept
the jurisdiction of the ICC, but it is
not clear yet whether the Philippines
has commenced the procedures for
withdrawal.
• The ICC has been too focussed on
Africa, so that the majority of its cases
come from there. Some African states
have withdrawn from the Statute.
However, a proposal by some African
states for a mass withdrawal have not
gained traction, and the alternative
mechanism proposed in the crime of
aggression the African Court on Human
and People’s Rights, has yet to gain
support from African states.
• The ICC is too expensive. Like the
International Tribunals for the Former
Yugoslavia and for Rwanda, it has
already cost many millions of dollars.
The ICC itself has sponsored or
promoted specialist chambers within
local courts or hybrid courts: one reason
is that these can be cheaper.
Not every human achievement is an
instant success, and some come with
many limitations. Yet, on balance, the
International Criminal Court has been a
success. Its very existence is a sign of the
gradual willingness of individual states to
share some aspects of their sovereignty in
the common cause of protections for the
victims of crime and ending the impunity
of criminals. On the twentieth anniversary
of the Rome Statute, while recognising the
limitations of the Court, we can celebrate
its success. B
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THE BULLETIN July 2018