The International Criminal Court (ICC) was established in 2002 as a permanent tribunal to prosecute and try individuals for the crime of genocide, crimes against humanity, and war crimes, as defined by several international agreements.
The first international court to try war crimes was the International Military Tribunal (IMT) which held the Nuremberg Trials, the trial of major Nazi war criminals after World War II. The United NationsGeneral Assembly instructed the International Law Commission (ILC) to develop a code setting out the legal principles behind the IMT, which it did; the ILC also developed in the 1950s a proposal for the creation of a permanent international tribunal to try war crimes in the future, but the General Assembly of UN did not take up the proposal at the time due to the onset of the Cold War.
The Statute became a binding treaty after it received its 60th ratification, which was deposited at a ceremony at United Nations Headquarters on 11 April2002. In fact, ten countries (Bosnia-Herzegovina, Bulgaria, Cambodia, Democratic Republic of Congo, Ireland, Jordan, Mongolia, Niger, Romania and Slovakia) submitted their ratifications at this time, bringing the total to 66, so that no one nation would hold the honor of depositing the 60th ratification. The ICC legally came into existence on 1 July 2002. When fully constituted, the ICC will have its headquarters in The Hague, Netherlands; but its Statute permits it to hold its proceedings anywhere.
The court became operational when the signatory nations met in the Assembly of State Parties to appoint a prosecutor and 18 judges. It opened on March 11, 2003. The Judge-President is Philippe Kirsch from Canada, and the Vice-Presidents are Akua Kuenyenia from Ghana and Elizabeth Odio Benito from Costa Rica.
Countries ratifying the treaty that created the ICC grant it authority to try their citizens for war crimes, crimes against humanity and genocide. It provides for ICC jurisdiction over offences committed on the territory of a state (including crimes committed on that territory by a national of a non-state party), by a national of a state, over crimes committed by any person when granted jurisdiction by the UN Security Council, and over crimes committed by nationals of a non-state party or on the territory of a non-state party where that non-state party has entered into an agreement with the court providing for it to have such jurisdiction in a particular case.
The International Criminal Court is composed of the Court itself, divided into a number of chambers (Pre-Trial, Trial and Appellate), the Registry, the Office of the Prosecutor and the Assembly of State Parties.
Many states wanted to add "aggression", "terrorism" and drug trafficking to the list of crimes covered by the Rome Statute; however other states opposed this, on the grounds that these crimes were difficult to define, and that dealing with less serious crimes such as terrorism and drug trafficking would distract from the seriousness of the crimes the ICC was established to deal with.
As a compromise, the treaty merely brands "aggression" a crime without defining it all, pending adoption of an amendment to the Statute is defining it; it may also be amended to include other crimes. But no amendments can be made until seven years after the Statute's entry into force.
In addition to the above, there are 45 states which have signed but not ratified the treaty. Two states (the United States and Israel) initially signed the treaty, but later announced that they were withdrawing their signature. However, supporters and opponents of the treaty dispute as to whether it is legally possible for a state to withdraw its signature from a treaty. In the case of the United States, the treaty was signed by former President Clinton less than a month before leaving office, though he said that "I will not, and do not recommend that my successor submit the Treaty to the Senate for advice and consent until our fundamental concerns are satisfied." [1] Treaties not ratified by the United States Senate have no legal standing in the U.S. unless and until that ratification takes place.
The United Nations (the treaty depositary) continues to include their names in the official list of signatories, while including their official statements of withdrawal in footnotes without comment.
Supporters would counter that the ICC's definitions are very similar to those of the Nuremberg trials. They also argue that the states which object to the ICC are those which regularly carry out genocide, war crimes and crimes against humanity in order to protect or promote their political or economic interests. It is unsurprising that states which carry out these crimes wish to avoid being prosecuted for them.
The United States, which signed but did not ratify the statute during the Bill Clinton administration, withdrew its support soon after George W. Bush assumed the presidency. It signed the ICC Statute at the last minute, primarily so that it could continue to take part in negotiations on the rules of procedure for the new court, in an attempt to obtain an exemption for US nationals taking part in UN-sponsored peacekeeping missions—as several other countries were able to do. The US fears that American soldiers and political leaders may be subject to "frivolous or politically motivated prosecutions."
On May 6, 2002, the United States informed the United Nations Secretary-General that "the United States does not intend to become a party to the treaty. Accordingly, the United States has no legal obligations arising from its signature on December 31, 2000." This was widely described as "unsigning" the treaty or "withdrawing" the United States' signature, although the United States in its letter did not use that terminology, and the United Nations has not removed the name of the United States from the official list of signatories. It is important to note that signing a treaty and ratifying a treaty are not the same thing.
Many in the U.S. believe that, as the world's sole remaining superpower, the United States can move against war criminals more effectively in a unilateral fashion. They cite the following examples to support their case:
The U.S.-led military actions in Iraq in 2003 have led to the killing, capture, or removal from power of Iraqi war criminals like Ali Hassan al-Majid and Saddam Hussein.
U.S. opponents of the ICC maintain that in cases where the U.S. failed to act quickly enough to prevent disaster (e.g. Rwanda), the U.S. has been criticized for allowing genocide to occur; in cases where the U.S. has acted quickly (e.g. Yugoslavia, Somalia) they have been criticized and even accused of war crimes.
Furthermore, opponents contend that the neither the ICC nor the United Nations has any real power to enforce the extradition of war criminals from signatory states. Therefore, any kind of military action to force compliance would have to be undertaken (in large part) by the U.S., action which would expose U.S. officials to spurious charges of war crimes.
It is unclear whether the ICC would reopen investigation of war crimes related to the incident on the Basran 'Highways of Death' and the use of weapons which incorporate depleted uranium.
Israel initially objected to the Rome Statute because of the clause defining "the war crime of the transfer of parts of the civilian population of an occupying power into occupied territory", which it feared implied that settlement activity in the occupied territories is a "war crime" and "grave offense." [1] Israel fears prosecution of Israeli settlers, or Israeli government officials who support the policy of settlements, as "war crimes". But it did eventually sign the treaty establishing the court despite its misgivings.
The People's Republic of China has expressed opposition to even the other states involved going ahead with it, claiming that the Statute is an attempt to interfere with the domestic affairs of sovereign states.
