An intergovernmental organization, the International Criminal Court (the ICC) is specifically designed to deal with the crimes that are thought to be most severe and serious. Although the idea that a permanent international criminal court is strongly needed, and therefore, should be created, had lingered for a very long time, the realization of that idea has become quite recently. Particularly, concerns over sovereign rights of the states have made them reluctant to get together to discuss the issue until 1998. In July 1998, at the Rome Diplomatic Conference to Establish an International Criminal Court, the Rome Statute establishing such a Court was adopted and opened for signature. The Statute was authored by the representatives of the Participant States so as that the treaty would enter into force after the number of 60 in ratifications is reached. That is to say, the Court was not automatically created at the conference. Although the vast majority of the participant states to the conference signed the treaty, showing their willingness and commitment to abide by the treaty content, the number of states that have signed the treaty but are not party to the ICC is “significant”. As of now, the number of the States Parties to the Rome Statute and to the ICC is 97, nearing 100. On the other hand, it is worth noting that the threshold for the entrance into force of the treaty -which was 60- was impressively overcome in a very short time. After the required number of ratifications has been reached, the Rome Statute, along with the ICC, officially entered into force in July 2002.
However, the Court did not become fully functional by the time it entered into force. In 2003, the judges and the independent prosecutor for the Court were appointed. After then, the ICC began operating in its headquarters in The Hague, “the capital of international law”. Although it has not dealt with and thus not concluded any case yet, first referrals by Uganda and Congo Democratic Republic have officially made it involved in the international criminal matters.
The Court will be dealing with the gravest crimes, that is, genocide, crimes against humanity, war crimes and crime of aggression. At the first sight, it might seem that the list is so narrow. However, there are many “sub-crimes” that could perfectly be called as crimes against humanity, such as systematically committed rape, forced prostitution and so on. Furthermore, the inclusion of aggression as a crime to be dealt with by the Court on the list is an important step in preventing future conflicts. Although the aggression is yet to be defined, there is an agreement that the definition would be consistent with the UN Charter. The Court’s involvement with a criminal matter could be initiated in three ways. First, the United Nations Security Council is given the authority to refer cases to the ICC. Second, as stated in the Statute, any State Party to the ICC may bring case to the Court. And finally, the independent prosecutor has the power, -although subject to some certain conditions and limitations-, to initiate an investigation for events that the prosecutor believes national authorities have not paid much attention to.
Significance of the ICC As one of the most recently established intergovernmental organizations, the ICC has the potential of influencing global politics deeply. However, at the same time, its creation triggered a major controversy between the EU and the United States, which might affect it s effectiveness and future roles.
First of all, it could be seen as a “small” revolution in international law and global politics. Traditionally, international law has created responsibilities for states only. In other words, the main subject of international law has been “the nation-state”. However, with the creation of the ICC, the individuals became responsible in international law. Although there has been individual criminal responsibility before the creation of the ICC, it was either temporary, or the individual concerned, while being responsible under the principles and rules of international law, was brought before justice by the state authorities. International legal arrangements dealing with piracy, the genocide Convention and te Geneva Conventions dealing with war crimes recognize the individual responsibility. However, none of them specifies an international authority to punish the individuals. That is to say, it is the national authorities that are anticipated to proceed against those who have committed the crimes covered by the above legal documents. However, there is no clearly and solidly defined sanction against the state that shows reluctance to effectively deal with the matter concerned.
Unlike the aforesaid documents, the Statute, -although to some extent-, replaces the ICC with national authorities in the matter of punishing the criminals. The States Parties have vested the ICC the power of formally asking the handing over of a criminal suspect to the Court. Therefore, the Court is expected to act as if it is a national court, where the actual national court concerned has failed to handle the matter properly, or is impotent to conclude it. It is also worth noting that the ad hoc Tribunals established to deal with the crimes in Rwanda and Former Yugoslavia are temporary and responsible to the UN Security Council. The predecessors of this kind, the Nuremberg and Tokyo Tribunals, were established by a few number states and might be seen as the tools of the victorious powers after the Second World War. Moreover, all have and had limited power in terms of both time and scope.
However, unlike these early examples, the ICC has a permanent seat, and a much more comprehensive authority. But most importantly, it is not controlled by the UN Security Council, where major powers have the right to veto. Although the Security Council is given prominent roles in the functioning of the ICC, it is the Assembly of States Parties that the ICC is held responsible to. The US Opposition to the ICC
Although seriously and eagerly involved in the preparatory work for establishing an international criminal court, the US showed hesitance to sign the Rome Statute at the Conference, being one of the seven participant but non-signatory states. The US at the conference insisted on the retaining the states’ discretion over the criminal matters. In addition, it wanted the Court to be acting under the control and authority of the Security Council. However, other participants rejected some of the American proposals, while on some of them a compromise was reached. For example, it has been agreed that the Court would be “complementary” to the national authorities, and act only if it would be evident that the state party concerned is unable to deal with the matter. During the Clinton Administration the US signed the Rome Statute on 31st December 2000, the virtual deadline for signing, as, under the Statute, a state willing to accede the ICC after that date would have to ratify it.
However, the treaty was never introduced in the Senate for ratification. Indeed, the bush Administration launched a campaign against the ICC. First, sending a letter to the UN Secretary-General, the US formally denounced itself from its undertakings and commitments originated from its signature. This came to be known as “unsigning”, a popular term, for which the debate that whether it is possible under international law is underway. Then, the Congress adopted the American Servicemembers’ Protection Act (ASPA), which gives the US President an extensive authority to deal with the ICC. Under the ASPA, the President is authorized to take “any” measure to free the American personnel from the ICC’s jurisdiction. Although hypothetically, since ASPA contains the military intervention option, the Act came to be known as “The Hague Invasion Act”, and caused serious tension and anger in Europe.
Cenap Cakmak
Rutgers, The State University of New Jersey
Remembering The Orly Attack
