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This time it was right before might

By Lukas Schmutz and Marie-Claude Roberge

Although the establishment of an International Criminal Court may not yield visible results very quickly, it represents, nevertheless, a milestone in the history of international law.

It was approaching midnight on 17 July, when the plenary meeting of the Rome Conference on the establishment of an International Criminal Court (ICC) burst into the sort of ovation you would expect to hear only for the triumphant finale of a Pavarotti premiere. But the applause here was not for an opera but for the result of a vote: the hall had just approved the ICC Statute, with 120 in favour, 7 against and 21 abstentions.

The strength of the emotion, the intensity of the cheering, left no room for doubt. The diplomats here were giving expression to something more than just relief at the successful outcome of a five-week conference, in which the gruelling struggle to reach solutions had remained precariously balanced right up to the wire. This was a symbolic occasion, a moment in which those present were aware that a milestone had been laid in the long, slow history of international law.

The road to Rome had been a long one and the beginning of the journey lay far back in history. Out of the spirit of the Nuremberg and Tokyo tribunals, in the wake of the Second World War, had grown a wish to establish a permanent International Criminal Court. The so-called ‘Genocide’ Convention of 1948 then made this wish the task of international law.

Yet the efforts to achieve this end remained blocked by the pack ice of the Cold War until the end of the 1980s. Even then, however, the opening up of new political perspectives was not sufficient to bring the question of the ICC to the top of the international agenda.

It would need the horrors of genocide in Rwanda and the former Yugoslavia to place the issue squarely on the negotiating table. Whereas, in the aftermath of these events, some states were satisfied with the ad hoc courts set up by the United Nations (UN) for Rwanda and the former Yugoslavia, a growing number of democracies continued to believe that a general norm had to be established, whereby any individual guilty of genocide, war crimes or crimes against humanity would be brought to trial.

Thus, there gradually emerged a group of so-called ‘like-minded’ states which, by the time of the Rome Conference, numbered around 50 countries, predominantly from Europe, Latin America and Africa.


A united front

Part of the emotional response in Rome stemmed from the fact that the like-minded had indeed successfully held out. In the end, it was only the USA which put up real resistance, so strong in fact that the Chinese were able to ride along comfortably in the slipstream and the Russians to enjoy a quiet conference.

The positions of Great Britain and France, the European permanent members, were more varied. Unlike the British who visibly distanced themselves from the position of their transatlantic cousins, the French associated themselves with the American notion that international peace-keeping actions by their forces could lead to their own citizens being hauled before the ICC.

In the whole ICC process, the role of the USA was as central as it was mysterious. However, another thing which should not go unnoticed about the USA’s position is the fact that, from the side of the non-governmental organization (NGO), the greatest pressures and the most dynamic forces were also coming out of America; not only from civil society but also from the very core of the intellectual elite. And they could well tip the balance the other way in America within the very near future.

That is also why it was crucial that the like-minded did not bend before American pressure on this occasion. Thanks to their firmness, we have a Statute which, for all the weakness mentioned above, is not entirely toothless. Though it would be naïve to expect results, prosecutions and judgements in the short term, this structure has a great potential for development, especially once the superpower remembers that power without justice is a double-edged sword. Thus, in the snail-like progress of international law, the Rome Statute represents a big little step forward.

Lukas Schmutz
Lukas Schmutz is the Geneva-based correspondent for the Basler Zeitung, Basel, Switzerland.

A first ICRC assessment

17 July 1998 marked a historic day for the battle against impunity, which has been a reality for too long and has given carte blanche to war criminals. After years of relentless efforts and five weeks of intense and difficult negotiations, a Statute for an International Criminal Court (ICC) was adopted.

The negotiations conducted to create such a court gathered states, intergovernmental organizations, hundreds of NGOs and the ICRC, all of whom worked untiringly towards what many considered a pipe dream.

The text of the Statute is substantial and should enable the ICC to engage in the effective prosecution of the following crimes: genocide, crimes against humanity, war crimes and aggression. Yet one must be clear about this court: it is not there to replace national courts in the prosecution of international criminals, nor is it set up to look at crimes committed in the past. States continue to have the prime obligation to prosecute war criminals and it is only when the national courts are unwilling or genuinely unable to carry out the investigation or prosecution that the ICC will be able to exercise its jurisdiction.

On more substantive points directly related to international humanitarian law, there are two areas of particular concern to the ICRC: the negotiations held on the jurisdiction of the ICC over war crimes, on the number and scope of crimes defined as war crimes, and the issue of preconditions for the ICC to exercise its jurisdiction.
The major accomplishment of the Statute, with respect to war crimes, is the recognition of the court’s jurisdiction over war crimes committed in internal conflicts. This was essential, as most recent conflicts are internal in nature, and we can expect that the near future will reflect the same reality. Yet the lack of specific provisions mentioning the use of starvation as a method of warfare, indiscriminate attacks against civilians and the use of prohibited weapons as war crimes in internal conflicts is regrettable.

The section detailing the war crimes committed in international conflicts, which are under the court’s jurisdiction, is satisfactory although not complete. To name only a few examples, no provisions are to be found on the unjustifiable delay in the repatriation of prisoners of war and on the launching of an indiscriminate attack affecting the civilian population or civilian objects. The provision on weapons has been kept to a minimum due to the difficulty of reaching consensus, largely because some states wished to see the inclusion of nuclear weapons in the list of prohibited weapons and the resistance of others to such an inclusion. Accordingly, nuclear, biological, blinding laser weapons and anti-personnel mines are excluded.

The ICRC’s most serious disappointment is with an article allowing a state to declare that it does not accept the jurisdiction of the court for a period of seven years with respect to war crimes, when they are alleged to have been committed by its nationals or on its territory.

This, in fact, creates a separate category for war crimes which appears to send a message that they are not as serious as the other core crimes listed earlier. Yet, international law already recognizes the obligation for states to prosecute war criminals no matter their nationality or where the crime was committed.

On the issue of preconditions for the ICC to exercise its jurisdiction, states agreed that the court could take up a case if the state where the crime occurred or of the accused’s nationality is party to the Statute or has accepted the jurisdiction of the court in a specific case. It is regrettable that the jurisdiction was not also extended to the state which has custody of the suspect, thus allowing for more possible ways for the ICC to exercise its jurisdiction. This loophole will however be overcome if there is wide acceptance of the Statute.

With this positive assessment in the background, there still remains an enormous task before the court is set up, truly functioning and effective. States must ratify the Statute in great number, or the ICC will remain an empty shell. Accordingly, much effort will have to be made in encouraging States to ratify the Statute. The work in this regard of the National Societies, the International Federation and the ICRC will be crucial.

Marie-Claude Roberge
Marie-Claude Roberge works as legal advisor in the ICRC’s legal division.



Lukas Schmutz
Lukas Schmutz is the Geneva-based correspondent for the Basler Zeitung, Basel, Switzerland.

Marie-Claude Roberge
Marie-Claude Roberge works as legal advisor in the ICRC’s legal division.


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